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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lindsay v. Forcett Railway Co [1870] ScotLR 8_82 (4 November 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/08SLR0082.html
Cite as: [1870] SLR 8_82, [1870] ScotLR 8_82
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SCOTTISH_SLR_Court_of_Session
Page: 82↓
Court of Session Inner House Second Division.
v.
Facts:
In an action against an English Railway Company the pursuer arrested certain plans and documents belonging to the Railway Company in the hands of the Company's agents in Scotland for the purpose of founding jurisdiction. Held the arrestments were inept, in respect—(1) That the documents being put into the hands of the arrestees by the pursuers for the special purpose of being transmitted to the defenders, arrestment was incompetent; and (2) that the documents being of no commercial value were not attachable so as to found jurisdiction.
This was an action at the instance of Lindsay, trustee on the sequestrated estate of James Trows-dale & Son, contractors, against the Forcett Railway Company, concluding for payment of the sum of £15,900, 8s. Id., under deduction of sums paid to account, and also for delivery of the plant used
Page: 83↓
by the pursuers in the construction of the Forcett Railway Company. The pursuer used arrestment ad fundandam jurisdictionem in the hands of Graham & Johnston, W.S., and Mr Tennant of Ballahulish. The defenders alleged—“The estates of Messrs Trowsdale were sequestrated in Scotland on 16th August 1866. They carried on business in Scotland as well as in England. On 21st January 1867, in virtue of a warrant obtained by the pursuer from the Sheriff of Edinburgh, the pursuer examined, under the provisions of the Scotch Bankruptcy Act, Mr Bryson, the engineer of the Forcett Railway Company, and Mr Richardson, the defenders' secretary. These gentlemen were asked to exhibit certain plans and documents in their possession, and they did so for the information of the trustee. The plans and documents were left with the trustee (pursuer) for examination. After a reasonable time had elapsed, Mr Bryson and Mr Richardson requested the plans and documents to be returned, as they were required for the purposes of the railway. The pursuer having refused, the Sheriff ordered the pursuer to return the documents demanded, being a portion of those exhibited, and which were immediately required. On an appeal to the Bill Chamber, the Lord Ordinary allowed the trustee such further time as might be reasonable to examine the documents, and remitted to the Sheriff to renew the order for return, and this interlocutor was adhered to by the First Division on 6th June 1867. Thereafter the Sheriff again ordered the documents specially required by Mr Bryson to be delivered up to him. Certain other documents produced by Mr Bryson, and certain documents produced by Mr Richardson, were in the same position, but as they were not needed by Mr Bryson they were not included in the judicial application. Messrs Graham & Johnston, W.S., Edinburgh, were the agents both for the Forcett Railway Company and for Mr Bryson and Mr Richardson. Messrs Graham & Johnston were authorised by the defenders, and by Mr Bryson and Mr Richardson, to receive back the plans and documents which had been exhibited to the trustee, in order to re-transmit them to Mr Bryson and Mr Richardson respectively, their legal custodiers. Accordingly, on 11th July 1867, the pursuers' agents, Messrs Lindsay & Paterson, delivered to Messrs Graham & Johnston the documents which had been specially applied for by Mr Bryson, and which had been ordered by the Sheriff, in accordance with the Inner House judgment, to be delivered to Mr Bryson. The plans and documents so delivered under the order of Court, were given and received for the special purpose of being transmitted by Messrs Graham & Johnston to Mr Bryson, and this was known to both parties. Immediately after the said documents were so delivered to Messrs Graham & Johnston to be forwarded to Mr Bryson, the pursuer, incompetently and illegally, caused a pretended arrestment to be used in the hands of Messrs Graham & Johnston, for the purpose of founding jurisdiction against the defenders. The said arrestment attached nothing. It was utterly inept, illegal, null and void. The arrestment did not and could not attach the plans and documents, which were handed to Messrs Graham & Johnston for the special purpose of being transmitted to Mr Bryson and Mr Richardson under the Sheriff's order. Further, these plans and documents were not the property of the defenders. Messrs Graham & Johnston are not, and never were, indebted to the defenders in any sum whatever, nor did they ever hold any moveable property belonging to the defenders. In so far as the defenders are or may be held to be interested in the plans and documents exhibited by Mr Bryson and Mr Richardson, Messrs Graham & Johnston received them merely as the hands or agents of the defenders, and for the special purpose of being transmitted to Messrs Bryson and Richardson respectively, who were their proper custodiers. Messrs Graham & Johnston merely took the documents, &c., for the accommodation of the pursuer, who would otherwise have been bound to send them to England. In point of fact, the plans and documents do not belong to the defenders, but to Messrs Bryson and Richardson, the defenders being merely entitled to the use thereof. The pursuers also used an arrestment, for the purpose of founding jurisdiction, in the hands of Mr Tennent of Ballachulish. That gentleman was not indebted to the defenders, and was not in possession of any property belonging to them. The arrestment attached nothing. Mr Tennent was a shareholder of the Forcett Railway Company. At the date of the arrestment he was not indebted to the railway company in any sum whatever.”
The defenders pleaded—“(1) The defenders are not subject to the jurisdiction of the Court of Session, and no jurisdiction has been founded against them. (2) The arrestments used by the pursuers ad fundandam jurisdictionem, are inept, void and null, and have attached nothing. (3) The plans and documents having been delivered by the pursuer to Messrs Graham & Johnston for the special purpose of being transmitted to the defenders, or to Messrs Bryson and Richardson, the legal custodiers, it was incompetent in the pursuer to attach or arrest the same. (4) Separatim, Messrs Graham & Johnston being merely the hands employed for convenience to forward the documents to England, arrestment in their hands is incompetent. Their possession is the possession of the defenders, or of Messrs Bryson and Richardson. (5) Jurisdiction cannot be founded by the mere arrestment of a writ or document.”
A proof having been led on the question of jurisdiction, thereafter the Lord Ordinary ( Jervis-woode) pronounced this interlocutor:—
“ Edinburgh, 19 th May 1870.—The Lord Ordinary finds, as matter of fact, that the several books, plans, letters, and other documents which are specified in the inventories, Nos. 161 and 162 of process, were in the possession of Messrs Graham & Johnston, W.S., the agents for the defenders, on the 11th and 13th July 1867, when the arrestments ad fundandam jurisdictionem, of which Nos. 7 and 8 of process are the executions, were respectively used in Messrs Graham & Johnston's hands, at the instance of the pursuer against the defenders: Finds that, on the 22d of July 1867, certain sums of interest, amounting to £14, 14s. 3
d. or thereby, were due by Mr Robert Tennant of Ballachulish, who is named in the ninth head of the condescendence for the pursuer, to the defenders, the Forcett Railway Company, in respect of a deposit and calls made by and upon him as a holder of shares in the said Forcett Railway Company, and that the said sums were arrested in his hands on said 22d July 1867, at the instance of the pursuer against the defenders, ad fundandam jurisdictionem, conform to execution, No. 9 of process, of the arrestment in Mr Tennant's hands: Finds, as matter of law, that 1 2 Page: 84↓
in respect of the said several arrestments, and of the executions thereof as above set forth, the defenders are subject to the jurisdiction of this Court, and are bound to answer in the present action to the pursuer under the same; and with reference to the preceding findings, repels the defences so far as inconsistent therewith, and appoints the cause to be enrolled, with a view to further procedure. Note.—This case involves questions of interest and difficulty as respects the matter of jurisdiction, with which alone the Lord Ordinary has dealt under the preceding interlocutor. This course of procedure has been adopted, because it seems obvious that, unless the view on which he has proceeded in sustaining the jurisdiction be well founded, it is not within his province to deal, in any respect, with the merits of the question raised; and further, because, as it appears to him, the terms of the interlocutor of a former Lord Ordinary, of the 18th March 1868, under which the proof was originally allowed, imply that the same procedure was then in contemplation.”
The Railway Company reclaimed.
Watson and Maclean for them.
Lord Advocate ( Young) and Lancaster in answer.
The Court recalled the Lord Ordinary's interlocutor, and, sustaining the third and fourth pleas of the defenders, dismissed the action.
At advising—
I do not think it necessary to say much with regard to the arrestment of the alleged debt due to the defenders, by Mr Tennant of Ballachulish. It is said to be doubtful whether any such debt is truly due, and there are plausible grounds for that contention; but apart from this, the conclusive answer to the plea of the pursuer is, that the arrestment was not duly served upon the debtor,—there having been no execution of the writ personally, or even by edictal execution, or at any dwelling-house shown to have been bis domicile within Scotland. The proper domicile of Mr Tennant is England; and although he is proprietor of an heritable estate in Scotland, this does not in itself make him liable to the jurisdiction of the Scotch Courts for personal debts, more especially for debt contracted by him in England to an English creditor. Any such debt was exigible at the instance of the creditor only in England, unless diligence had been used by the creditor to constitute jurisdiction. Here the attempt is by an alleged creditor of the English creditor of the debtor, to fix the personal debt due by him in Scotland, so as to constitute jurisdiction against the English creditor of the arrestee. I think this is without precedent, and very questionable in principle. It is not, however, necessary to press this objection to the diligence. It was indispensable that a nexus should he legally imposed upon the alleged debtor to the English company, by due service of the writ of arrestment. The allegation is, that this was effectually done by service of the writ at the house of Ballachulish, where Mr Tennant was not resident, and where I think the evidence conclusively shows he had no legal domicile. That house was on the property belonging to him; but from his deposition it appears that it was the residence of his factor, and that it was matter of arrangement with his factor that he should occupy that dwelling-house as part of his salary. During the autumn of 1865, no doubt, Mr Tennant says that he and his family had lived at the house for about two months; but he adds, that that was the only time they were ever there, and he had no intention of going there to stay, as the house was the factor's residence from October 1866. The arrestment served at this dwelling-house is dated in July 1867; and was transmitted to Mr Tennant by his factor to his residence at Leeds. In this state of the facts, I am of opinion that the alleged arrestment was not duly served, and although otherwise unobjectionable, cannot be held to have been legally executed, so as to constitute any nexus on the alleged debt due by Mr Tennant to the defenders.
The other arrestment, however, is that upon which the pursuer mainly relies, and it is necessary to attend carefully to the circumstances in which the question of its validity for that purpose arises.
The sequestration of Trowsdale & Son's estate affected property belonging to them both in England and Scotland; and the pursuer, as trustee, applied for, and obtained, warrant for examination of parties acquainted with the affairs of the bankrupt, being entitled, under the 91st section, to have produced for inspection books and other papers and documents, that might have relation thereto. And in the course of such proceedings the engineer of the Railway Company, Mr Bryson, and their secretary Mr Richardson, were examined in England, and were asked to exhibit certain plans and documents in their possession for the information of the trustee and for his inspection, and which were exhibited accordingly
These documents were brought to Scotland solely with that view and for that purpose, and came into the hands of the trustee with no other view and for no other purpose whatever. After a reasonable time for inspection, the trustee was under an obligation to restore them to the custodiers in England. He refused to do so, and application having been made to the Sheriff for their restoration, the matter became the subject of proceedings in this Court, in the course of which the Lord Ordinary, by an interlocutor adhered to by the Inner House on 6th June 1867, allowed the pursuer further time for inspection of the documents, and appointed them “to be delivered to the respondent William Bryson, by whom the same were produced.” Thereafter
Page: 85↓
The clear duty of the pursuer, under these judicial orders, was to restore the books and documents to Mr Bryson, in England, from whom he had obtained them; but, in place of doing so directly, he made delivery of them to the agents of the defenders, and of Bryson, and of Richardson (Graham & Johnston, W.S., Edinburgh). These parties granted receipts, dated 11th and 13th July, for the documents so received by them “as agents of Bryson and of Richardson and of the Forcett Railway Company,”—the legal procedure which has been mentioned having been conducted by them for these several parties, Of these very same dates, viz., 11th and 13th July, the arrestments juris. fund. causa were used by the pursuer in the hands of Graham & Johnstone, of the books and documents which had been just handed over to the arrestees, for transmission to the English parties,—whose property they were, and by whom they had been produced solely for the limited purpose of inspection foresaid.
The claim made in the action in support of which these arrestments were used is for an alleged debt of £16,000 for work done connected with the railway in England; and the question is, Whether jurisdiction has been well constituted by means of arrestments of such subjects as were here attached, and in such circumstances as those in which the pursuer resorted to the diligence?
I am of opinion that jurisdiction has not been thereby well constituted, and that the proceeding adopted for the purpose is an abuse of the privilege by which a creditor may, by arresting the goods of his English debtor, create jurisdiction in the Scotch courts to entertain an action and give decree for the debt if due.
In the first place, I am not aware of any instance of arrestment of this kind being used, of any subject, corporeal or incorporeal, other than such as might be attached by diligence in execution, and capable of being realized for payment of the debt when constituted; and as to the non-arrestability in execution of these books and documents, I entirely concur in the views explained by your Lordship, and in the observations in support of those views.
But, in the second place, I think it sufficient for the decision of this question that the pursuer was debarred in the circumstances from attaching the books and documents in question in the manner here attempted. He had received the documents for a special purpose, and although they were sent from England to enable him with more convenience to inspect their contents, he was under an obligation, when this temporary purpose was served, instantly to return them to England to their proper owner or custodier there. There was a judicial order against him, enforcing this duty of restoration, under which he lay. While they were in his hands they could not be the means of creating jurisdiction in the Scotch Court, and I apprehend as little were they open to be attached fox that purpose when placed in the hands of Graham & Johnston as agents, with the view of their being transmitted to England to their constituents. Had the pursuer sent them direct to the English parties by carrier or railway he could not have arrested them in the course of transmission when in the hands of third parties employed in their transmission. But, in principle, Graham & Johnston truly occupied no other position than such middle-men. Having been employed in the proceedings necessary to compel the pursuer to perform his duty of restoration of the subjects, they were naturally recognised as the proper parties to grant a receipt for the books and documents, in order that they might be forwarded safely in terms of the order of Court to their constituents. I hold it to have been incompetent for the pursuer, while with the one hand he delivered over the documents to the agents of the defenders, with the other to lay on a nexus to prevent that very transmission to England as ordained by the Court, to accomplish which alone they were placed in the hands of Graham & Johnstone. I think, therefore, that the third plea in law stated for the defenders ought to be sustained.
Such being the grounds of my opinion, I do not think it necessary to enter on the question whether, having regard to the circumstances in which these subjects were brought to Scotland, and supposing them to be such goods as were capable of arrestment of this kind, they could have been attached to found jurisdiction by creditors of the defenders not exposed to the personal bar pleadable against the pursuer? But had this been necessary for the solution of the present case, I would be inclined to hold that the subjects were not so located within Scotland as to have justified their attachment with a view to the creation of a jurisdiction not otherwise competent to a Scotch tribunal.
Solicitors: Agents for Reclaimers— Graham & Johnston, W.S.
Agents for Respondent— Lindsay & Paterson, W.S.