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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barr (Lamont's Trustee) v. Smith & Chamberlain [1879] ScotLR 17_126 (18 November 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/17SLR0126.html
Cite as: [1879] SLR 17_126, [1879] ScotLR 17_126
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SCOTTISH_SLR_Court_of_Session
Page: 126↓
Court of Session Inner House Second Division.
[Sheriff of Lanarkshire.
v.
Facts:
Held that the fact that an English firm had lodged a claim in a Scotch sequestration subjected them to the jurisdiction
Page: 127↓
of the Scotch Courts rei conventione in an action against them at the instance of the trustee on the sequestrated estate. Observed per Lord Gifford that a party suing a partner of a company upon a company debt lays himself open upon the principle of reconvention to be sued at the instance of the company.
In this case Mr J. M. Barr, accountant in Glasgow, sued Messrs Smith & Chamberlain, brassfounders, Birmingham, for delivery of certain goods. Mr Barr sued as “trustee on the sequestrated estate of James Lamont, gasfitter, &c., in Glasgow, trading sometime under the firm of Lamont & Renton, of which he was sole partner, and also as a partner of the firm of Lamont & Thomson, plumbers, &c., in Glasgow, and as an individual; and also as trustee on the sequestrated estates of Lamont & Thomson as a company, and John Thomson as a partner of the company and as an individual.”
James Lamont's estates in these various characters had been sequestrated on 20th January 1877, and Lamont & Thomson's estate on 26th March 1877.
Sometime previously to these sequestrations, viz., in October 1876, Smith & Chamberlain had supplied a quantity of goods to Lamont & Thomson to the amount of about £180, for which sum they lodged a claim upon the sequestrated estate of James Lamont. In the beginning of February 1877, after James Lamont's bankruptcy, and within 60 days of Lamont & Thomson's, a large portion of the goods supplied were stated by the pursuer to have been taken possession of by Smith & Chamberlain without any price being paid for them, and without the knowledge of the pursuer, and it was to regain possession of these goods that this action was raised.
The defenders pleaded, inter alia, no jurisdiction.
During the progress of the case in the Sheriff Court, and upon the suggestion of the Sheriff-Substitute ( Guthrie), the pursuer pleaded that the defenders were subject to the jurisdiction of the Scotch Courts ex jure conventionis, as having lodged a claim in James Lamont's sequestration. The Sheriff-Substitute thereafter sustained the jurisdiction on this ground and allowed a proof. The defenders appealed to the Sheriff ( Clark) who adhered. A proof was afterwards led on the merits, after which the Sheriff-Substitute ordained the defenders to deliver up the goods. On appeal the Sheriff ( Clark) adhered.
The defenders appealed, and argued on the question of jurisdiction—There was here no reconvention, for there could be none without convention, i.e., calling into Court, and here no one had been called into Court, for all that had been done was to lodge a claim in the sequestration. Even admitting that in the ordinary case there was reconvention, it was not so here, for the parties were not the same. The claim had been lodged on James Lamont's estate, and it was Lamont & Thomson's trustee who was suing.
Authorities— Black v. Knox & Ellis & Sons, M. 1805, App. “Foreign,” No. 7; Thomson v. Whitehead, Jan. 25, 1862, 24 D. 331.
Argued for the respondents—Reconvention was really an equitable rule of pleading. There was no separate jurisdiction conferred by it, but it was an answer to a plea of no jurisdiction. Here there really was convention, and therefore reconvention, for the appropriate procedure under the Bankrupt Acts had been adopted.
Authorities— Ord v. Barton, Jan. 22, 1847, 9 D. 541; Morrison and Milne v. Massa, Dec. 8, 1866, 5 Macph. 130; Elliot v. Aiken, June 23, 1869, 7 Macph. 894.
At advising—
I am not going into the vexed question of the origin of reconvention, and I should be sorry arbitrarily to lay down whether it is to be considered as an equitable balancing of claims in the same Court or as actually conferring jurisdiction. For my own part I am not prepared to say that reconvention is merely an equitable balancing of claims and nothing else. It is not necessary here to decide the principle, for in this case the equitable considerations which go to sustain the jurisdiction are very strong.
The goods which are the subject of this action are now in Smith & Chamberlain's hands, and they are part of the whole order originally sent. The question therefore is, whether the trustee, who, it is admitted, has been asked to pay a dividend to Smith & Chamberlain in respect of the price of the remaining part of the goods which have not been returned, is entitled to re-delivery of those which have been returned.
I cannot see the difficulty that was started that the proper party is not here—that the convener was James Lamont and the reconveners Lamont & Thomson. The claim was no doubt made on the estate of James Lamont only, but it was as a partner of the firm of Lamont & Thomson, who purchased the goods, and it is of no moment whether Lamont was the primary or subsidiary debtor.
It was said that a sequestration was not a proper process, that there was no proper convention—no calling into Court—and that therefore there could be no reconvention. I do not see this at all. I think a sequestration has all the characteristics of a judicial process, and in point of fact the trustee is convened by a claim being lodged with him. I think that the plea of reconvention is here available, and that therefore there is here jurisdiction.
The other party maintain, however, that this being merely a sequestration there is no convention, and therefore there can be no reconvention. Now, this is a very peculiar plea, for it appears to me that in Ord v. Barton, 9 D. 541, and other cases, the Court did proceed on the footing that a sequestration and a claim in a sequestration is a good foundation for a plea of reconvention, and the trustee is therefore entitled to sue the creditors; and if ever there was a case where equity required it to be done it is the present. I am therefore clearly for sustaining the jurisdiction. It is another matter altogether as to the merits; we have not heard parties on them yet.
In England a claim against a partnership is always made against the several partners of the firm, and in Scotland we have the same thing, except that we recognise in addition a separate estate in the partnership itself. I think that he who sues on a company debt one partner of a company lays himself open to be sued by the company on a plea of reconvention.
The Court therefore adhered on the question of jurisdiction, and they then proceeded to consider the case upon the merits, and in the result adhered upon that branch also.
Counsel for Pursuer (Respondent)— Asher— Lang. Agents— Macbrair & Keith, S.S.C.
Counsel for Defenders (Appellants)— Trayner— Mackintosh. Agents— Frasers, Stodart, & Mackenzie, W.S.