Scottish Court of Session Decisions

This action arose out of the suspension of a charge for payment of a sum of money due to Messrs N. & N. Lockhart, manufacturers, Kirkcaldy, by the late firm of Pearson & Jackson, writers there; and the issue sent to the jury was as follows:—

“Whether the charge, in name of the said N. & N. Lockhart, was given, and is now insisted on, by W. A. Taylor, writer in Cupar, and Thomas Jackson, writer in Kirkcaldy, or one or other of them for behoof of the said Thomas Jackson?”

It appeared from the evidence that the Messrs Lockhart were creditors of the now dissolved firm of Messrs Pearson & Jackson, writers, Kirkcaldy, for the sum of £1050. One-half of that sum was recovered from Thomas Jackson, one of the partners; but the balance he was unable to pay. Under these circumstances, Mr Taylor, writer in Cupar, applied to the Messrs Lockhart on behalf of Jackson; and on condition of Mr Taylor interposing his personal security they granted Jackson the indulgence required. Mr Taylor accordingly accepted a bill drawn upon him by the Messrs Lockhart for the sum of £633, 16s. 9d., being the balance, with interest and expenses, of the sum due them; and of same date the Messrs Lockhart undertook by letter to grant him, on payment of this bill, an assignation to the decree and diligence at their instance against the firm of Pearson & Jackson, Mr Taylor in the meantime being at liberty to use diligence in their name on condition of his becoming bound to keep them scatheless of all expense and responsibility in consequence. Mr Taylor then applied to, and obtained from Jackson, in security of the bill granted by him, a disposition to certain heritable property in Burntisland, and also a bill drawn by Jackson upon his father at a year's currency. Thereafter he proceeded to charge Mr Pearson, the other partner of the firm, in name of the Messrs Lockhart, and in virtue of the decree to which he had obtained right by the letter of the 18th February 1863. On the falling due of Mr Taylor's bill to the Messrs Lockhart in February 1864, neither he nor Jackson were in a position to pay. But by means of an arrangement entered into between Mr Taylor and Mr Dewar, a former apprentice of Messrs Pearson & Jackson, an instalment of £133 was paid, by the assistance of Mr Dewar, to the Messrs Lockhart, and a bill granted for the balance.

On behalf of the suspender it was now argued that the proceedings out of which this action had arisen were taken for the interest of Jackson alone; that Mr Taylor acted only by his instructions and under his authority; and that by taking security from Jackson and his father he was in a position to recover the amount advanced by him whenever he pleased.

For the chargers it was maintained that, although Mr Taylor had originally interposed his security out of friendship to Jackson, he had, nevertheless, a direct pecuniary interest in enforcing the charge against Pearson; that the security obtained from Jackson was of little avail, in consequence of the property over which it was granted being tied up by inhibitions at the instance of Pearson and others; and that the sum of £133 bad already been paid in cash by him, with the assistance of a small contribution by Mr Dewar.