Scottish Court of Session Decisions

Lord President—This is certainly a peculiar case. Diligence was used upon the dependence of this action of damages at the instance of Miss Catherine Smith, and the inhibition and arrestments were recalled on an arrangement between the parties that the defender should consign in bank the sum of £1000 subject to the order of the Court, and as a security to the pursuer for any sum she might recover in the action. The Lord Ordinary has pronounced an interlocutor in which he gives £500 damages to the pursuer, but he ordains that payment is to be made by equal yearly instalments, which are to extend over the pursuer's tenancy of the hotel—so that she is entitled under this decree to the payment yearly of a sum of over £60. But there is a break in the lease, for the tenant is entitled at Whitsunday 1881 to put an end to the lease, and in that case there are only three years to run and three instalments payable. Now, therefore, there are here two questions? There is first the question, Whether the pursuer is entitled to the security of this consignation for the whole period of the lease? and secondly, if she is not entitled to that, whether she is entitled to the security for the payments up to the date of the break, which although future are not contingent?

The general rule is that diligence cannot be used for a debt which is either future or contingent, but this rule applies chiefly to cases where the debt arises out of some contract between the parties, and where the law naturally holds that if the party requires a security for payment of his money he will obtain that security at the time when he entered into the contract. That principle appears to me to be the foundation of the rule, but it has hardly a clear application to a case like the present, and it had hardly a clear application to the case of Symington, which, however, I do not think is an authority here, as it depended on circumstances which arise out of the peculiar relation of husband and wife. In the present case I have certainly a strong impression that the circumstances of the Lord Ordinary awarding damages and making the sum payable by annual instalments is not of itself a sufficient reason for depriving the pursuer of the benefit of diligence or of the consignation which comes in place of it, and so far as the instalments will certainly become payable, I think she is entitled to the security. I do not think that this is a violation of the general rule of law that it is not competent to use diligence in security of a future debt. The pursuer will therefore be entitled to have so much of the consigned money left in bank as will meet the instalments down to 1881, or the defender must find caution for their amount.

Lord Deas, Lord Mure, and Lord Shand concurred.