Scottish Court of Session Decisions

The pursuers, Bell and Others, partners of the Devon Iron Company, were engaged in certain trading transactions with the defenders, Allan and Son, ship-brokers in Leith. On 27th November, 1833, Allan and Son transmitted to the Devon Company an account-current, as between the parties, crediting them with the value of coals furnished for vessels freighted by Allan and Son, amounting to £91, 16s.; and charging them with freight of 100 tons of iron, amounting to £62, 10s., and with various items of freight and shore-dues, actually advanced for them, to the extent of £14, 17s.; thus leaving a balance of £14, 9s., for which balance Allan and Son remitted the Company per bank draft. On the 28th November, the Company wrote in answer:—“We are duly favoured with your letter of yesterday, annexing an order on the Commercial Bank of Scotland's Branch, Alloa, for £14, 9s., which you state as the balance of our account against you, whereas we consider you are still £18, 0s. 8d. in our debt, as per state below.” The state referred to brought out a balance in all of £18, 0s. 8d. at the debit of Allan and Son.

After some farther correspondence, Bell and the other partners of the Iron Company raised action against Allan and Son for the sum of £32, 17s. 8d. as the balance of the above-mentioned account-current due to the Company.

In defence against the action, besides their pleas upon the merits (which were special, and related to the correspondence between the parties), the defenders pleaded on the point of jurisdiction, with reference to the pursuers' letter and annexed state of 28th November, 1833, which contemplated their whole claim as extending only to £18, 0s. 8d., that that was the utmost amount for which the defenders could in any view be liable, and that the action was incompetent under the 50th Geo. III. c. 112, as being truly for a sum under £25. The pursuers thereafter admitted on the record, that the defenders were entitled to credit in this action for the sum of £14, 17s.

The Lord Ordinary pronounced the following interlocutor:—“Repels the objection taken to the competency of the action in this Court, in relation to the act of 50 Geo. III. c 112. But finds, on the merits, that the defenders are entitled to credit in this action for the sum of £18, 0s. 8d., with the lawful interest thereof, from the 28th of March, 1834; and, in respect, that it is now admitted that they are also entitled to credit for the farther sum of £14, 17s., which two sums exactly balance and extinguish the £32, 17s. 8d., for which the action is raised, sustains the defences, assoilzies the defenders, and decerns: Finds them entitled to expenses, subject to modification.” ^*

The pursuers reclaimed on the merits, praying for decerniture in terms of the libel, under deduction of the sum of £14, 17s. claimed by the defenders. The defenders reclaimed on the point of expenses.

The Court pronounced as follows:—“Adhere to the interlocutor of the Lord Ordinary submitted to review on the merits; but find the defenders entitled to the full expenses of process and of extract, and to this extent alter the interlocutor of his Lordship, and decern.”

The defenders not having reclaimed against the finding as to the point of jurisdiction, that part of the interlocutor was not entered upon. It was observed, however, by Lord Medwyn, in expressing his concurrence with the interlocutor on the merits, that the point of competency was not before the Court; that he did not think the case referred to by the Lord Ordinary was applicable to the present case; that after the letter of 28th November, he did not see how the pursuers could have made a claim for the £14, and he was not to be held as concurring in the part of the interlocutor repelling the objection to the competency.