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Cite as: [1876] SLR 13_523, [1876] ScotLR 13_523

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SCOTTISH_SLR_Court_of_Session

Page: 523↓

Court of Session Inner House First Division.

[ Lord Young, Ordinary.

Friday, February 10. 1876.

13 SLR 523

Nelson, Donkin & Co.

v.

Browne and Others.

Subject_1Process
Subject_2Competency
Subject_3Summons
Subject_4Value of Cause — Act 50 Geo. III. cap. 112, sec. 28.
Facts:

A number of underwriters were sued for payment of £60, 13s. 1d., the sum due upon a policy of insurance, “and that according to the several proportions for which the said policy was underwritten by them, viz., the sum of £1, 4s. 3 1 2d. sterling each.”— Held that the objection that the process was not
Page: 524↓
competent in the Court of Session under the Act 50 Geo. III. cap. 112, sec. 28,—its value being under £25—was not good.

Headnote:

This was an action at the instance of Nelson, Donkin, & Company, shipowners, Newcastle-on-Tyne, against Robert Bennett Browne and others, being fifty in all in number, and designed as underwriters in Glasgow. The summons concluded for “payment of £60, 13s. 1d., being the sum due on a policy of insurance on the steamer ‘Menzaleh’ executed at Glasgow the 14th day of February 1874, and that according to the several proportions for which the said policy was underwritten by them, viz., the sum of £1, 4s. 3Jd. sterling each,” &c. The pursuers were managing owners of the ss. “Menzaleh,” which was insured in different offices and places for the sum of £30,000; amongst others the defenders were insurers, and subscribed a policy of insurance for £50 each. On the vessel being damaged, and a claim under the insurance policies being made, the pursuers received payments amounting to £418, 11s. 8d., the defenders in this action alone denied liability, and refused to pay the sum of £60, 13s. 1d., the amount of the loss which fell to be sustained by them.

They pleaded, inter alia—“(1) The pursuers have no title to sue. (2) The present action is incompetent before the Court of Session, in respect the defenders have no joint liability in the premises, and the sum concluded for against each defender is less than £25 sterling.”

The Lord Ordinary repelled these pleas, and allowed parties a proof of their averments.

The defenders reclaimed, and argued—In judging the value involved in an action the conclusions should be looked at. Here the conclusions were for sums below £25, and decree could only be got against each defender for £1, 4s. 3 1 2d. Community of interest in the defenders was not enough. The case of Dykes v. Merry & Cunninghame involved a larger question than the mere pecuniary result.

Authorities— Gifford v. Traill, July 8, 1829, 7 S. 854; Gibson, Thomson, & Co. v. Cameron, June 9, 1827, 5 S. 784.

The pursuers argued—The Court of Session had jurisdiction in all causes, unless it was specially excluded. The criterion of the value of a cause was the amount the pursuer might recover. This was not a case for the Small-Debt Court.

Authorities— The Liquidators of the Western

Sank v. Douglas, &c., 1860, 22 D. 447; Dykes v. Merry & Cunninghame, March 4, 1869, 7 Macph. 603; Dove Wilson's Sheriff-Court Practice, pp. 91 and 487.

At advising—

Judgment:

Lord President—This is a question not without some difficulty, and we have had the benefit of a good argument upon it. I have had some doubt in the course of the discussion, but I have now come to be of opinion that this action is competent, and the plea of the defenders is not well-founded. It was undoubtedly competent for the pursuer to convene all the defenders in one action irrespective of the value of the cause. If each defender were liable for a sum exceeding the amount of £25, it would not admit of dispute that the action was competent against the whole of the defenders, because they are all convened as being obligants in one contract, and as all defenders in one single issue of fact.

That first point goes a long way to solve the question whether the circumstance of the liability of each individual defender being under £25 renders the action incompetent on the ground that it is for the recovery of a sum which is under the value of £25 as regards each defender separately. To make the action incompetent under the statute the sum involved in the cause must not exceed £25, and the question is, whether this case, in as much as it involves a sum which amounts only to £1, 4s. 3 1 2d. to each of the defenders, is a case which is so excluded from this Court.

I am of opinion that this is not a case to which the statute applies. I think the value of the sum involved in the action is £60, 13s. 1d., because that is the amount of money which the pursuer will be entitled to recover if he is successful.

This is a question which has already been decided in the other Division of the Court in the case of Dykes v. Merry & Cunninghame, March 4, 1869, 7 Macph. 603, and if I had entertained any doubt as to the soundness of that decision, I should have thought it proper to consult our brethren; but I have come to think that case well decided, and that we ought to hold in conformity with it that this action is competently brought in this Court.

Lord Deas—I am clearly of the same opinion. The conclusions of the summons are in favour of the pursuers' contention, and they must be looked at in the first instance. They are not conclusive of the question, but taken along with the fact which your Lordship has pointed out, that the defenders have a common interest, I think there is enough to leave no doubt upon the point.

As regards the position of pursuers suing together in one libel, the rubric in the old case of Gray (M. 11,986) is as follows:—“Found that different parties could not accumulate their actions in one libel unless they had connection with one another in the matters pursued for, or had been aggrieved by the same act.” It has always been my experience of the law that if there is a community of interest or connection between several persons, they can sue together for a sum due to them all in that capacity. In the same way, it is sufficient that a number of parties called as defenders shall all be connected together in reference to the defence. The present is the clearest possible case of that kind. The whole subject-matter of the action involves one question of fact affecting the whole of the defenders. The consequences, too, of our giving effect to the contention of the defenders in the amount of litigation which would ensue, and the expediency of the present course, are not to be left out of view. They are important considerations. The action could not be laid in the Small-Debt Court in one summons against the whole of the defenders, and the only alternative would be to bring an action against each, as a decision against one of the defenders would not be res judicata as against another.

The decision in the case of Dykes v. Merry & Cunninghame, which was quoted to us, laid down

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the law most accurately, and it has not been doubted in the whole practice of the Court.

Lord Ardmillan—There is no presumption against the jurisdiction of this Court, which must be sustained unless it be excluded by statutory law. The statute excludes from our jurisdiction certain cases in which the amount at stake is under a certain value. The question how that is to be ascertained is matter for adjudication by this Court, and the decision of this Court on the question of the ascertainment of value is no encroachment on the statute.

Here the value to the pursuers is something above £60. The next important consideration is that the parties called are all united as obligants in one contract, which, ex concessu, is binding on all if on any. There is nothing here to raise a doubt that the pursuer can recover the whole sum of £60, 13s. 1d., if he recover anything at all. Apart altogether from the case of Dykes v. Merry & Cunninghame, to which we have been referred, I should be of opinion that, looking to the contract and the sum concluded for, the pursuer had rightly brought this action in the Court of Session; but looking to the case of Dykes, I think it is an authority applicable to the matter in dispute.

Lord Mure concurred.

The Court adhered.

Counsel:

Counsel for Pursuers— Guthrie Smith— A. J. Young. Agent— Thomas Dowie, S.S.C.

Counsel for Defender — Trayner. Agent— P.S. Beveridge, S.S.C.
1876