Scottish Court of Session Decisions

Mr Henry, S.S.C., raised an action against D. A. Morrison, the only conclusion of the summons (besides that for expenses) being for delivery of fifteen I 0 U's for small sums therein specified, the total sum contained in them amounting to £16, 18s. 6d. It appeared that the defender, who was at one time cashier and book-keeper to the pursuer's firm, had obtained possession of these I 0 U's, which bore to be granted by Mr Scott, the pursuer's partner, and had raised an action in the Sheriff Court against Mr Scott, which was still in dependence, for payment of their contents.

The pursuer pleaded—“The documents libelled being the property of the pursuer, and the defender having illegally taken them away from the pursuer's office, and continuing wrongfully to retain possession thereof, the pursuer is entitled to decree in terms of the conclusions of the summons.”

The defender pleaded—“(1) The action is incompetent.”

The Lord Ordinary ( Adam) repelled the defender's first plea, and added the following note:—“The first question in this case is, Whether the action is incompetent under the 28th section of

Page: 439↓

50 Geo. III. cap. 112, in respect that its value does not exceed £25?

It lies upon the defender, who seeks to oust the jurisdiction of the Court, to prove the affirmative of that proposition, and in order to do so he cannot travel beyond the record in the action, and, it may be, not beyond the conclusions.

The action is an action for delivery of fifteen I 0 U's of small amount, amounting in all to £16, 18s. 6d. There are no pecuniary conclusions.

The action is therefore purely an action ad factum prcestandum, and is brought by the pursuer for the purpose of recovering possession of certain articles, viz., I 0 U's, which he alleges are his property. It is said, however, that it appears ex facie of the articles sought to be recovered, that their value is under £25, and that therefore that action is incompetent.

The Lord Ordinary thinks that the question is a delicate one, but he thinks that the action is competent.

It is clear on the authorities that where the action is solely for delivery of an article of property it does not matter, as regards the competency of the action, how trivial the value of the article may be, and such an action only becomes incompetent where the pursuer himself estimates the pecuniary value to him of the article, and therefore of the action, by inserting an alternative pecuniary conclusion showing that the value of the action is under £25.

In this case there are no pecuniary conclusions, and it does not appear to the Lord Ordinary necessarily to follow that the value of the I 0 U's to the pursuer is simply the pecuniary value which they represent. It is clear enough that the action is not brought in respect of the pecuniary value of the I 0 U's to the pursuer, but for the purpose of aiding his partner Mr Scott in his defence to the action raised against him in the Sheriff Court by the present defender. That may or may not be a legitimate object, but it may give them a value in the pursuer's estimation much beyond the sum of £16, 18s. 6d., which they represent. It is not difficult to imagine a case brought for the recovery of certain pieces of the current coin of the realm which would be by no means met by the tender of coins of equal value. A pursuer may have a pretium affectionia even for a crooked sixpence, and if he can show it is his property wrongfully withheld from him be is entitled to recover it. The Lord Ordinary therefore thinks that this action is not incompetent. Purges v. Brock, 9th July 1867, 5 Macph. 1003; Shotte Iron Company v. Kerr, 6th Dec. 1871, 10 Macpb. 195; Aberdeen v. Wilson, 16th July 1872, 10 Macph. 971.”

The defender reclaimed, and argued—The action was incompetent and should be dismissed. An action ad factum prcestandum was not competent for a subject of less value than £25, unless there were adventitious circumstances giving it a higher value. The conclusions of the summons, though the first and most obvious, were not the only test of the value of a cause. There was nothing here to show that pursuer had any other object than to obtain the money contained in the I O U's.

Authorities—(Besides those quoted by the Lord Ordinary) Cameron v. Smith, 24th Feb. 1857, 19 D. 517; Inglis v. Smith, 17th May 1859, 21 D. 822; Dobbie v. Thomson, 2, 2d June 1880, 7 R. 983.