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Cite as: [1866] SLR 2_153, [1866] ScotLR 2_153

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SCOTTISH_SLR_Court_of_Session

Page: 153↓

Court of Session Inner House Second Division.

Tuesday, June 26. 1866

2 SLR 153

Evans, Arnott, and Co.

v.

Drysdale's Trustees.

Subject_1Process
Subject_2Trial before Lord Ordinary without Jury
Subject_3Verdict
Subject_4Reclaming-Note — Competency.
Facts:

A reclaiming-note against a verdict of a Lord Ordinary refused as incompetent in respect none of its findings involved law. Opinions that when law is thought to be involved in a verdict, and is to be called in question, it should be brought under the notice of the Lord Ordinary in the note for re-hearing, and (diss. Lord Benholme) verdict should not be accompanied by a note.

Headnote:

Mrs Drysdale, widow of the deceased Alexander Drysdale, tailor and clothier in Sauchie, who died there on 8th September 1863, continued to carry on the business after her husband's decease, and became indebted to the pursuers, woollen manufacturers in Leeds. This action was raised against her husband's trustees, on the ground that through the widow they carried on the business for which the debts were contracted.

By the trust-deed in question, the trustees were directed to pay the free yearly income thereof to the widow for the maintenance of herself and the children, and on the widow's death, if the children were then major, or if not, as soon as all the children should attain majority, the heritable properties were to be conveyed to them in certain proportions, and the personal estate distributed as specified. As to the stock-in-trade and business of the deceased, it was provided thus:—“Thirdly, My trustees shall have power, if they think it expedient to do so, to allow my widow to carry on my business of tailor and clothier and general dealer at Sauchie; and for that purpose to leave in her hands the whole stock-in-trade, outstanding debts, and other assets belonging to the business, with power to her to intromit therewith in the fullest manner; but my trustees shall have it in their power, at any time they may judge proper, to call upon my said widow to account for and pay over to them the value of the said stock-in-trade, debts, and assets, as the same stood at the time of my death; and to this extent my widow, should she be allowed to carry on the said business, shall be accounted debtor to the trust-estate; but my trustees shall not be obliged to compel her to pay the same, unless they shall consider it expedient to do so, in which matter I give them full discretionary powers.”

The widow having applied to the trustees in terms of the foregoing clause to be allowed to carry on the business, the trustees executed a factory and commission, whereby they empowered and allowed her to carry on the business, and for that purpose left in her hands the whole stock-in-trade and other assets; authorised her to uplift the outstanding debts, and in their room and name empowered her to lift the rents of the heritable properties belonging to the trust.

The case was tried before Lord Kinloch without
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a jury (the evidence of consent being taken down by a short-hand writer), under the following issue:—

“Whether the debts and bills set forth in the annexed schedule, or part thereof, were contracted and granted to the pursuers by Agnes Arnott or Drysdale, widow of the said deceased Alexander Drysdale, while carrying on business as tailor and clothier, and general dealer, at New Sauchie aforesaid, for and by authority of the defenders; and whether the defenders are indebted and resting-owing to the pursuers in said sums, with interest thereon, or any part thereof, under deduction of £15 paid to account on 16th December 1864.”

On the 14th March 1866, the Lord Ordinary issued an interlocutor in which he “Finds it proved that the debts and bills stated in the schedule to the issue were contracted and granted to the pursuers by Mrs Agnes Drysdale, widow, &c., while carrying on business as tailor and clothier, and general dealer, at New Sauchie, and that the same are resting-owing to the pursuers. But finds it not proved that the said business was carried on for and by authority of the defenders. And finds on the issue for the defenders.” His Lordship added a note, in which he explained that in his view nothing more was done than to carry out the trust according to its strict terms—the truster having contemplated that the widow herself, and not the trustees, should carry on the business.

Pursuer put in a note for re-hearing, in which his Lordship was simply asked to recal his findings, and in lieu thereof to find that the business was carried on for and by the authority of the defenders, and to find for the pursuers on the issue. The Lord Ordinary adhered to his former interlocutor, and the pursuers then reclaimed, and prayed the Court to recal the interlocutor, and in lieu thereof to find that Mrs Drysdale carried on business for and by authority of the defenders, and that in point of law the business so carried on was for the defenders, as trustees foresaid.

Judgment:

Pattison and Watson, for the pursuers, maintained that the Lord Ordinary had misread the trust-deed under which the trustees were entitled to appoint the widow as their agent in carrying on the business, and therefore his finding in fact that they had not done so was erroneous in law. The interlocutor might, therefore, be competently recalled, notwithstanding sections 46–7 of the Act of 1850.

Guthrie Smith, for the defenders, was not called upon.

The Court refused the reclaiming-note as incompetent. Balfour v. Wordsworth, 9th July 1854, 16 D. 1028; Hood v. Williamsons, 8th Feb. 1861, 23 D. 496, were referred to.

The Lord Justice-Clerk—It appears to me that this is a very clear case. Difficulties have arisen and will arise upon the construction of the clauses of the Act of 1850, which provide for the trial of causes by a Lord Ordinary without a jury. The present case is not encumbered with any such. The interlocutor of the Lord Ordinary is, except as regards the last few words, a proper special verdict, and in the form contemplated by the 46th section of the Act. The Lord Ordinary had before him an issue which put to him the questions. [Reads issue]. Now his Lordship has found it proved. [Reads interlocutor down to last clause of it]. Now, stopping there, the interlocutor is entirely in conformity with the Act. I have some doubt about the last words of the interlocutor—“And finds on the issue for the defenders.” That seems to me more like the verdict of a jury. The statute contemplates nothing but specific findings in fact, although these, as in the present case, conduct necessarily to a judgment of absolvitor. But passing by this (which, by the way, was also disapproved of in Hood and Others v. Williamson, 8th Feb. 1861, 23 D. 496), the interlocutor deals with nothing but pure fact, and in particular, in that finding which was objected to by the reclaimer, there is nothing but a finding in point of fact. The Lord Ordinary “finds it not proved that the said business was carried on for and by authority of the defenders.” The reclaimers contend that this finding proceeds upon a misconstruction by the Lord Ordinary of the trust-deed of the late Mr Drysdale, and they think that had his Lordship not so misconstrued that deed his finding would have been different. I must say they have entirely failed to satisfy me upon this point. As the finding is put, it appears to me that whatever view the Lord Ordinary took of the trust-deed, his verdict would have been the same. Whatever the terms of the trust-deed, the question still remained the same, whether in point of fact the business was carried on for and by authority of the defenders. The parties construed the deed as not giving the trustees powers to carry on the business, and what they did was to carry out the purposes of the trust in conformity with that construction. But suppose that construction to have been utterly wrong, and that the Lord Ordinary had thought it was so, he would still, as it appears to me, have found as he did upon the evidence. I am of opinion that the reclaimers have failed to show that any question of law is involved in the findings of the Lord Ordinary. Even though I had had doubts as to this, I don't think the reclaimers have brought the matter competently before the Court. They had the Lord Ordinary's views as to the trust-deed before them in his Lordship's note; and yet, in applying under the statute for a re-hearing, they do not ask him to reconsider the law as it had been announced in his note. I am afraid they thereby lost their opportunity of bringing the matter up, even had there been anything in it upon the merits. I very much sympathise with the observations which have fallen from some of your Lordships as to notes being appended to interlocutors in such cases. They form no part of proper proceedings under the statute. In dealing with the Lord Ordinary's findings as the verdict of a jury, we are not entitled to go beyond the interlocutor itself, and I must say I think it would be better if Lords Ordinary did not add any note at all. I am for refusing this reclaiming-note as incompetent.

Lord Cowan—The question is, has any law been here competently raised? The Lord Ordinary's interlocutor does not contain any law, but merely findings in fact. I agree that the Lord Ordinary should just answer the issue by findings in fact without any note; and any point of law thought to be involved should be raised in the note for rehearing. The case of Hood was considered with great deliberation, and is most important as an authority in such matters. I agree in the result arrived at by your Lordship.

Lord Benholme said—I concur in the result at which your Lordships have arrived, and will say no more than that I think it would be wrong in me to discourage Lords Ordinary from adding notes to their interlocutors in such cases. The main object of these is to show the parties on what grounds the verdict proceeded, and especially if questions of law be involved. I am not prepared to say that Lords Ordinary do not do well to explain the

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views upon which they form their judgment, and this in view both of the re-hearing and of further proceedings under a reclaiming-note.

Lord Neaves—The issue in this case has been very fairly dealt with by the Lord Ordinary. Although in point of form it put only one question, in point of fact it involved several. As I take it, the cases of Hood and others settle that the Lord Ordinary ought not to determine the case by a general verdict, but make, as the Lord Ordinary has done here, specific findings in fact. In this case, after the Lord Ordinary has done so, he “finds on the issue for the defenders,” which I take to be a finding in law, meaning that the facts being so, the defenders are entitled to a verdict. The Lord Ordinary has added a note to his interlocutor. Now, it does not by any means follow that because he has done so, incidental remarks made therein are to be taken as formal findings. It is given for the information of parties. With regard to the law which it has been attempted to introduce into the interlocutors under review, the reclaimers had two opportunities of raising it before coming here—once in their speech upon the evidence, and again in their note for a re-hearing. Whether it is fatal to an after-attempt to raise it that it has been omitted in that note I do not say, but I think a party should raise it there, and say here is a question of law upon which I ask a finding. If it is essential to the case, and the Lord Ordinary gives no deliverance upon it, or an erroneous one, it might perhaps be dealt with here like a question of law raised upon a bill of exceptions. The Lord Ordinary has an opportunity, in pronouncing his second interlocutor, of giving a deliverance upon any point specially raised in the note for re-hearing, or of refusing to make any finding with regard to it. In this case, what reason is there to consider the right construction of the trust-deed the determining element in Lord Ordinary's mind? The question was what the parties meant to do and did, and not whether they proceeded upon a sound or unsound view of the clauses of the deed. The Lord Ordinary has obviously proceeded upon a view of the facts put in evidence. This is shown by the wording of the finding complained of. His Lordship finds that the pursuers have failed to prove that the business was carried on for, and by authority of, the defenders. The pursuers have not satisfied me that any of the findings of the Lord Ordinary proceeded on an erroneous view of law.

The Court, therefore, refused the prayer of the reclaiming-note as incompetent, and found the pursuers liable in expenses since the date of the last of the interlocutors of the Lord Ordinary.

Solicitors: Agent for Pursuers— James Somerville, S.S.C.

Agent for Defenders— Alex. Morison, S.S.C.

1866