Scottish Court of Session Decisions

This was an action at the instance of Miss Isabella Macfarlane, as executrix-dative of her father, against Miss Annabella Anstrullier, executrix-dative of the late Dugald Anstruther, and against Mrs Vulliamy, the representative of the cautioner of the

Page: 93↓

said Annabella Anstruther in her confirmation as executrix-dative foresaid.

Dugald Anstruther died intestate on February 8th, 1843. His personal estate, which consisted mainly of shares in the ship ‘Falcon,’ fell to be divided among five persons. One of these, the defender Annabella Anstruther, was decerned executrix-dative, the amount of the estate being £1254, 5s. 4d. Matthew King became her cautioner in the confirmation, and the defender Miss Vulliamy is his representative. The mother of the pursuer, who was entitled to a fifth share of the estate, died in 1852, and was survived by her husband, who died in 1853. The pursuer attained majority in 1863. The pursuer further alleged:— “The said John Macfarlane was at sea when the said Dugald Anstruther died; and except during a few days in the year 1846, when the ship which he sailed as master happened to be loading at Glasgow, he continued to be absent from Scotland till the year 1851. His wife was absent along with him from and after the year 1845. On returning to this country, and ascertaining his rights in reference to his wife's share of the said Dugald Anstruther's executry-estate, the said John Macfarlane, in the year 1852, demanded from the said Annabella Anstruther, as Dugald Anstruther's executrix, an account of her intromissions, and payment of the amount of his wife's said share. At the date of his death, however, he had not succeeded in getting payment. The pursuer was, when her father died, unable, from her youth, to take any charge of her affairs, having been then only about eleven years of age; but she has now reached majority; and having recently learnt the existence of her rights as now claimed, she proceeded to take steps for the vindication thereof. She has repeatedly desired and required the said principal debtor, and the said representative of the said cautioner, to make payment of the sums now sued for; but they refuse, or at least delay to do so, whereby the present action has been rendered necessary.”

The defenders Mr and Mrs Vulliamy pleaded—“(1) The pursuer is bound, ante omnia, to discuss Annabella Anstruther, the principal debtor. (2) The action is barred by mora and taciturnity. (4) The pursuer's claims are sopited, and the obligations of the cautioner and his representatives discharged by the acts of the pursuer's predecessors and authors. (5) The debt sued for having been paid, the defenders are entitled to absolvitor. (6) The pursuer, the said John Fulton Anstruther, and the said Annabella Anstruther, being acting in concert for the collusive purpose of extorting payment from the defenders of a claim settled and paid, or, at least, abandoned and discharged by the parties interested, the defenders are entitled to absolvitor.”

On 18th May 1869 the Lord Ordinary ( Ormidale) sisted the action until the pursuer sould have had a reasonable opportunity of discussing the other defender, Annabella Anstruther. And on 9th June he pronounced this interlocutor:—

“The Lord Ordinary decerns against the defender, Annabella Anstruther, qua executrix-dative to the deceased Dugald Anstruther, in absence, to make payment to the pursuer, qua executrix-dative to the deceased John Macfarlane, of the sum of £139, 7s. 4d. sterling, with interest thereon, in terms of the conclusions of the summons, with expenses.”

Thereafter a search was made for the principal debtor Annabella Anstruther, for the purpose of executing a warrant of imprisonment against her but without success.

The defender Mrs Vulliamy presented a minute to the following effect:— “Maclean for the minuters, with reference to the pretended discussion of the principal debtor, stated and asked leave to instruct the following facts:— First, That the pursuer is the neice of the principal debtor, and has since her childhood resided and now resides in family with her at Port-Glasgow. Second, That the principal debtor is possessed of monies and furniture and other estate in Port-Glasgow. And third, That the pretended search for the person of the principal debtor was a collusive and fraudulent device on the part of the pursuer and her, between whom it had been arranged that the latter should absent herself from Port-Glasgow at the time when the search was to be made. The principal debtor accordingly went to Glasgow for the day. After the search was over she returned to her house in Port-Glasgow, and has resided there continuously ever since.”

The Lord Ordinary allowed the proof craved, and thereafter pronounced this interlocutor:—

“ Edinburgh, 14 th June 1870.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof, Finds it proved, as matter of fact, 1st, That the pursuer is the neice of the principal debtor, Miss Annabella Anstruther, and has since her childhood resided and now resides with her in family at Port-Glasgow; 2d, That said principal debtor is the owner of some furniture and other estate; 3d, That no attempt has been made by the pursuer to attach or make available said furniture or estate towards payment of her claims in this action; and 4th, That the search founded on by the pursuer as having been made by her for said principal debtor with a view to her incarceration, in order to enforce payment of the claims against her in this action, was a mere colourable and collusive proceeding, not intended to operate any real discussion of said principal debtor: Finds, in the foregoing circumstances, and in respect the pursuer has had ample time and opportunity for discussing said principal debtor, which she has not availed herself of, that the defenders, Mr and Mrs Vulliamy, are now entitled to absolvitor: Therefore assoilzies said defenders from the conclusions of the action, and decerns: Finds said defenders entitled to expenses; allows them to lodge an account thereof, and remits the same, when lodged, to the auditor to tax and report.

Note.—This action, which the Lord Ordinary thinks there is some reason for believing was from the beginning got up not very fairly towards the defenders, who are now assoilzied, has been in dependence for no less than six years. Nor can it be said that this great delay has been unavoidable or occasioned by proceedings in Court. On the contrary, it has arisen entirely from the procrastination of the pursuer herself and her advisers, indulged in by them for no legitimate purpose that the Lord Ordinary can see. He thinks it therefore high time that such a system of procrastination, which has been justly complained of on the part of the defenders now assoilzied, should be put an end to.

The summons in this case is peculiarly constructed. In place of concluding for one decree against all the defenders, the cautioners as well as the principal debtor, superseding extract against the former till the latter should be discussed, the

Page: 94↓

summons concludes for decree against the cautioners only after the principal debtor has been discussed, and in the event only of the sums sued for then remaining unpaid. The Lord Ordinary, therefore, having regard to this peculiar structure of the summons, by interlocutor of 18th May 1869 sustained a plea of the defenders to the effect that the action should be sisted quoad the cautioners till the principal debtor should have been discussed; and the pursuer, acquiescing in that interlocutor, took decree against the principal debtor on 9th June thereafter. It was in virtue of this decree that the pursuer, after great delay, went through the form of a search for the person of the principal debtor with a view to her incarceration, and, founding on that search, she has maintained that there has been such discussion as entitled her to decree against the cautioners. The latter then lodged the minute No. 30 of process, setting forth the circumstances in reference to which they contended, in effect that the alleged discussion was a mere colourable and collusive proceeding; and they craved to be allowed an opportunity of proving the facts and circumstances alleged by them. The Lord Ordinary accordingly, by interlocutor of 23d February last, after hearing parties ‘on the minute for the defenders, No. 30 of process, and the proof therein asked not being opposed by the pursuer, who at the sametime stated she did not admit the statements therein,’ allowed the parties the proof referred to.

“The proof was adduced on the 28th of March last, but the debate was postponed till the summer session at the desire of the pursuer, and to afford her ‘an opportunity of producing the correspondence which took place between the pursuer and Mr Macallum and Mr Barclay’ (her country and town agents), ‘or at least of considering whether that correspondence ought not to be produced.’ Certain letters bearing to be written by the pursuer to her Edinburgh agent, Mr Barclay, were produced so recently as the 17th of last month; but it is obvious that these letters do not complete the correspondence. They make reference to letters of Mr Barclay, not one of which has been produced.

The first question discussed at the debate before the Lord Ordinary was whether or not it had been established that the search for the principal debtor, on which the pursuer founded as discussion of her, was a bona fide or a collusive and colourable proceeding. The Lord Ordinary thinks it must be held that the proof supports the latter view. It shows, according to his reading of it, that Mr Anstruther, the uncle of the pursuer, is and has been throughout the prime mover in the whole matter. The correspondence, one-sided and defective as it is, produced on the part of the pursuer on the 19th of last month (Nos. 35–46 of process) of itself sufficiently shows this. And if so, there can be no doubt as to the true character and object of the alleged search, for, according to the testimony of Mr Anstruther himself when examined as a witness for the pursuer, he ascertained from, or, as the Lord Ordinary has little hesitation in thinking, arranged with Mr Macallum, who is said to be the pursuer's country agent at Greenock, the day and hour when a messenger-at-arms was to be sent to Port-Glasgow to search for the principal debtor; and accordingly on that day, and previous to that hour, care was taken to have her taken out of the way. As for the pursuer herself, when first examined she stated that she knew little or nothing of the action at all, that she never authorised it, and that she never would have thought of incarcerating her aunt, the principal debtor, and never authorised any such step to be taken, or search for her being made with a view to her apprehension and imprisonment. On her re-examination, however,— in the meantime having been tutored by her uncle, Mr Anstruther,— she retracted to some extent her previous testimony, and endeavoured, the Lord Ordinary thinks very unsuccessfully, to explain it away. The conduct, indeed, both of the pursuer and her uncle, on the day of their examination, was so reprehensible that the Lord Ordinary is disposed to think that he is chargeable with having been remiss in the strict discharge of his duty in not marking his sense of it at the time in a manner that would have operated as a better check to the repetition of such behaviour than any remarks he can now make on the subject. Be that, however, as it may, the Lord Ordinary is sorry to feel himself obliged to say that he can place no reliance on the testimony of the pursuer, so far as favourable to herself. She and her aunt directly contradict each other on the material point,— her knowledge of the aunt going out of the way preparatory to the search being made. She denies any such knowledge, while her aunt distinctly swears to the opposite conclusion. But without entering into any further detail, the Lord Ordinary has merely to say that he thinks no serious doubt can be entertained, on a consideration of the whole proof, that the finding in the preceding interlocutor, as to the true character of the alleged search, is well founded.

It was, however, maintained, in the second place, for the pursuer, at the debate before the Lord Ordinary, that let the character of the search be what it may, and supposing it to be thrown aside altogether, the charge of horning or payment given to the principal debtor was, in this, as it is in every case, sufficient discussion. The Lord Ordinary cannot adopt this view, and it certainly could not have been entertained by the pursuer herself, or her advisers, when the Lord Ordinary allowed to the defenders a proof of the averments in the minute, No. 30 of process, ‘the same not being opposed by the pursuer.’ But independently of this consideration, the Lord Ordinary thinks that the contention of the pursuer is not only not supported, but opposed by the authorities— and in particular, he would refer to Stair, 1, 17, 5; Erskine, 3, 3, 61; and Bell's Principles, sections 252–3; and also to Menzies’ Lectures (pp. 209–10, 1st ed.) where the law and the decided cases in illustration of it appear to be very distinctly explained. With reference to these authorities, and keeping in view that it has been proved in this case that the principal debtor is possessed of some estate, and, in particular, of some furniture, and a claim on her uncle's bankrupt estate, which has not been attempted to be attached and made available, it does not appear to the Lord Ordinary that it can be held there has been discussion of the principal debtor in respect merely of the charge of payment which was given to her. Nor can he hold the two cases of Henderson, 3 S. p. 133, and Macdonald, 7 S. 845, cited and relied on by the pursuer, to be adverse authorities. The reports of these cases are exceedingly meagre; but the Lord Ordinary had the advantage of having the session papers in them examined before him at the bar, and also the fuller report of M'Donald's case as given in the Scottish Jurist. The result was to

Page: 95↓

satisfy the Lord Ordinary that in Henderson's case the Court must have been influenced by the specialty that the party there charged stood in the position of a judicial cautioner in a process of advocation, and that in M'Donald's case the alleged cautioner was, in the special circumstances which there occurred, viewed and dealt with as being in no better or more favourable a position than the principal debtor himself. The Lord Ordinary must therefore hold that the authority of Stair, Erskine, and Bell remains unaffected by the cases of Henderson and M'Donald, and that the cases of Arnot v. Abernethy, Mor. 3587; Stewart v. Fisher, Mor. 3588; Brisbane v. Monteith, ib.; Milin v. Græme, ib.; and of Douglas v. Lindsay, Mor. 8125,—which appear to be very much in point, must still be held to be governing precedents.

“If the Lord Ordinary be right so far, he thinks there can be no doubt that the defenders, Mr and Mrs Vulliamy, are now entitled to absolvitor, and that it would be imposing on them a hardship for which there is no sufficient justification to keep the present action depending over them any longer.”

The pursuer appealed.

Rhind, for her, pleaded that a cautioner could not be relieved, except by a positive act of the creditor in giving time, by arrangement, and that mere delay or forbearance was not sufficient. Cases quoted— Crichton v. Ranken, 26th May 1840, 1 Robinson's App. 132; Young v. Edmunds, 6 Bingham's Rep. 84.

Shand and Maclean, for Mrs Vulliamy, answered that there was no authority where the delay had been so great as in the present case.

At advising—