Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0116.html
Cite as: [1866] SLR 1_116, [1866] ScotLR 1_116

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SCOTTISH_SLR_Court_of_Session

Page: 116↓

Court of Session Inner House First Division.

1 SLR 116

Anderson

v.

Scottish North-Eastern Railway Company.

Subject_1Cedent and Assignee
Subject_2Title to Insist.

Facts:

In an action for reduction of an arrestment of a share in a railway company, a party who was sisted as assignee of the share pendente processu held entitled, after the action was dismissed, in so far as the pursuer was concerned, to insist in it for his interest, although the action itself was not assigned.

Subject_Companies' Clauses Act.
Facts:

Held that the provision of the Companies' Clauses Act excluding action for dividends, &c., where the party is not registered, does not apply to an action by a party against the company itself, it refusing to register him.

Headnote:

In June 1863, John Anderson, coal merchant, sometime residing in Forfar, raised an action against the defenders to have it declared that an arrestment of one share of the company's stock belonging to him—which had been used by the defenders themselves in their own hands in execution of a decree which they had obtained against the pursuer—was an inhabile or improper diligence to attach the said share, or the dividends which had become due, or might become due, thereon. There were also conclusions for reduction of the arrestment, and for payment of bonuses, dividends, and profits.

In November 1863 the pursuer assigned his said share to Alexander Watt, accountant, in Edinburgh, who in January 1864 raised an action against the secretary of the company to have it declared that he was bound, in virtue of the assignation, to register him in the register of transfers as proprietor of said share. This action was defended on the ground that the company had a lien over the share for the debt due to them by Anderson, which they had secured by arrestment before the date of the assignation to Watt. The Court, on 22d March 1865, dismissed this action, in respect the company had not been made a party to it ( 3 Macp. 730).

Watt also, on 16th December 1863, asked the Lord Ordinary, in respect of the assignation, to sist him as a party in Anderson's action, “as in right of the stock;” and on 15th January 1864 he was accordingly sisted as a party in terms of his minute.

Anderson having been sequestrated, intimation was made to his trustee, who declined to sist himself; and Anderson having failed to find caution for expenses, the action was dismissed “so far as the said pursuer is concerned.” Watt then proposed to insist in the action as assignee, which the Lord Ordinary disallowed, in respect the assignation on which he founded contained no assignation of the action; and farther, he dismissed the action in respect of Watt's failure to obtain himself registered as a shareholder in the railway company, holding that under sections 14 to 17 of the Companies' Clauses Act, a party con-not demand a decree for bonuses, dividends, or profits, accruing on the stock until he is so registered. Watt reclaimed; and the Court to-day unanimously altered the Lord Ordinary's interlocutor, and remitted to him to proceed with the cause.

Judgment:

The Lord President said—This interlocutor is rested on two separate grounds. It is said that the assignation to the stock contains no assignation to this action. It appears to me that it gives Mr Watt a title to maintain that the arrestment of the stock which the company have used in their own hands is ineffectual. I think the assignation to the stock implies that. It might have been a good objection to Anderson insisting in the action that he had assigned to Watt. But this objection was not taken, and Watt was sisted as a party. His direct and palpable interest is to relieve the stock

Page: 117↓

from the only difficulty which stands in the way of his enjoyment of it. It is said he was only sisted for his interest. The interlocutor does not say so, but he has the very material interest which I have explained. I think therefore that the assignation fairly carries a right to maintain this action. The Lord Ordinary has stated another reason for dismissing the action. He says that under the statute such an action as this cannot be sued unless the party is registered as a holder of stock. The company refuses to register him, but is he not entitled to have the question betwixt him and it fully considered? It has not been made quite clear to me that he cannot maintain that the company have no right to throw this obstacle in his way. The disabilities referred to in the statute do not, I think, contemplate a case of this kind.

Lord Curriehill concurred.

Lord Deas said—The whole question is, whether the railway company's arrestment or Mr Watt's assignation is preferable. The latter surely has a right to try that in this action in which he has been sisted as a party. The general rule undoubtedly is that additional pursuers cannot be introduced without the consent of the defender. I don't know that that rule applies to the case of cedent and assignee; but here the thing has been done. He has been sisted “as in right of the stock.” He might have tried the question in a separate action. Why not in this? The Companies Clauses Act does not touch this case.

Lord Ardmillan—The assignation to the stock without the right to clear it would not be worth having. As to the other point, surely the assignee of the stock cannot be turned out of Court merely because his opponent, the company, chooses not to register him? I think that, except in very exceptional cases, an assignation of a claim implies an assignation of an existing suit. Besides, here the party has been sisted.

Counsel:

Counsel for Watt— Mr Patton and Mr Thoms. Agent— Mr W. Officer, S.S.C.

Counsel for Defenders— Mr Clark and Mr Birnie. Agents— Messrs Webster & Sprott, S.S.C.
1866