Scottish Court of Session Decisions

Lord Justice-Clerk—This question as to the principle on which the value of a cause is to be determined has often arisen, and has sometimes been attended with difficulty. The general rule is that the conclusions of the summons afford the test of value, the amount, viz., which the pursuer of the action can recover under them.

Here the summons concludes for £20, 5s. 6d., which is described as the balance of a much larger account. But there are no qualifying words, and it is clear that the pursuer could only have recovered £20, and nothing more. I know of no case in which the value of such a cause has been held to be greater than the sum concluded for.

The whole of this matter was thoroughly canvassed in the case of Aberdeen v. Wilson, July 16, 1872, 10 Macph. 971. In that case the summons concluded for delivery of certain fleeces, and failing delivery, for a sum of £20, or such other sum as the Court might award. The ease went to the whole Court, and it was held by a majority that, seeing there was a conclusion ad factum præstandum, and an indefinite conclusion for damages, the value of the cause was not below £25.

But it is quite certain, from the opinions of all the Judges, that if there had been no other conclusion in the summons in that case but one for £20, the Court would have found the appeal incompetent.

As to the case of Inglis ( Inglis v. Smith, May 17, 1859, 21 D. 822), it was a very peculiar one. The counter—account for which the pursuer in that case gave credit, which he was not bound to do, was the result of an entirely separate transaction, and the Court held the debit side of the account to be the real substance of the action. But that is not the case with the credit items in this case, and I therefore think the value of the cause is merely £20, 5s. 6d., and that so this appeal is incompetent.

Lord Ormidale—I concur. The summons in this case concludes for £20, 5s. 6d., as the balance due to the pursuers on certain consignments of manure made by them to the defender “for sale on commission.” The commission is in this way necessarily made an item to be taken into account in ascertaining the balance. The value of the cause to the pursuer was therefore the £20, 5s. 6d., being the balance after crediting the commission.

But the case of Inglis v. Smith is, I think, distinguishable. There a debt or balance of £92 odds was claimed as due to the pursuer on the particular transaction in question; and that balance was reduced so far by crediting, or rather setting off against it. a counter claim due to the defenders of £57 odds, and then restricting the balance to £25. But it is obvious that the claim of the pursuer, standing, as it did, independent of the counter claim, greatly exceeded £25, so that by concluding and taking decree for the balance, after making allowance for the counter claim of £57, he proceeded on the assumption that he had a good claim of his own for the balance sued for plus the £57. In that case, therefore, the value of the cause to the pursuer was truly the balance he took decree for, plus the £57. But here the commission was an item in the accounting before any balance could be ascertained; or, to put it differently, the pursuers could have no claim, and no debt could arise in their favour, without crediting that commission.

I am therefore satisfied that the case of Inglis v. Smith is distinguishable from the present, and does not stand in the way of our finding, as I think we ought, that the appeal here is incompetent in respect the cause to the pursuer must be held to be less than £25.

Lord Gifford—I am of the same opinion. The value of the suit does not exceed £25, and therefore it falls under the statute.

It has been said that you must inquire into both sides of the account, and see what sums are due. But it does not matter what you have to

Page: 8↓