Scottish Court of Session Decisions

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Cite as: [1881] SLR 19_190, [1881] ScotLR 19_190

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SCOTTISH_SLR_Court_of_Session

Page: 190↓

Court of Session Inner House Second Division.

[Sheriff of Forfar.

Saturday, December 10. 1881.

19 SLR 190

Grant

v.

Fleming.

Subject_1Sheriff
Subject_2Debts Recovery (Scotland) Act 1867 (30 and 31 Vict. cap. 96) —“Merchants' Accounts”
Subject_3Triennial Prescription Act 1579, cap. 83.
Facts:

In an action brought under the Debts Recovery Act for the amount of disbursements made more than three years previously by the pursuer in discharging a cargo on the defender's mandate, the Court repelled pleas (1) to the effect that the debt fell under the expression “ Merchants' Accounts” as used in the Triennial Prescription Act of 1579, and was therefore prescribed; and (2)— dub. Lord Young—that if the Act of 1579 did not apply, then neither did the Debts Recovery Act.

Headnote:

David Grant, potato merchant, Dundee, presented a petition in the Sheriff Court of Forfar against Alexander Gilruth Fleming, Manager of the Scottish Banking Company, Dundee, for the purpose of having him ordained to make payment of the sum of £46, 8s. 8d. sterling, as the amount of disbursements made by the pursuer on his account in discharging a cargo of potatoes.

The defender pleaded—“(1) Prescription. (2) If it was held that triennial prescription did not apply, action was incompetent in the Debts Recovery Court. (3) On the merits, no employment—the pursuer's brother John Grant, now deceased, being the party employed with the work, and he having been settled with.”

After a proof the Sheriff-Substitute ( Cheyne) found in fact—“(1) That in the end of the year 1877 the defender, who was then a bank-agent in Dundee, imported a cargo of potatoes, consisting of 148 tons or thereby, in a ship called the ‘Olympus;’ (2) that at the defender's request, the pursuer, who was a potato merchant in Dundee, and a customer of defender's bank, and to whom the defender had rendered some friendly services, agreed to see to the discharging, storing, and dressing of said cargo; (3) that in carrying out said agreement, and in connection with said cargo, the pursuer made disbursements amounting to £40, 8s. 8d., which sum included no charge for personal trouble; and (4) that no part of said disbursements had been repaid to the pursuer by the defender: Found in law, on these facts, that the defender was liable in the amount of said disbursements, and three years' interest (amounting to £6) thereon: Therefore decerned against the defender for payment to the pursuer of the sum sued for, being £46, 8s. 8d. sterling, and for the further sum of £6, 8s. 1d. sterling of expenses,” &c.

He added this note:—“The case of Saddler v. M'Lean, 1794, M. 11, 119, and other cases cited
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in Dickson on Evid., section 487, are sufficient authorities for holding the plea founded on the triennial prescription inapplicable here, where the claim arises out of the contract of mandate. With regard to the plea that the action is not competently brought under the forms of the Debts Recovery Act, more doubt may be felt; but, on the whole, looking to the opinions delivered in the case of Sandys v. Lowden & Rowe, 1874, 2 R. (Just. Cas.) 7, and remembering that the Act is to be liberally construed, I have come to the conclusion that I ought to refuse to sustain it.”

Upon the merits his Lordship was of opinion that the pursuer's claim was just.

The defender appealed, and argued—The account sued for was three years and eight months old at the raising of the action. It was struck at, then, by the Triennial Prescription Act of 1579, cap. 83, which ordained that “all actions of debt for housemaids, men's ordinars, servants' fees, merchants' compts, and other the like debts that are not founded upon written obligations, be pursued within three years, otherwise the creditor shall have no action except he either prove by writ or oath of his party.” But (2) if it was held that triennial prescription did not apply, the action was incompetent under the Debts Recovery Act 1867.

The pursuer replied—(1) The Act of 1579 only struck at accounts as between merchant and customer, or employer and employee. No accounts arising out of the contracts of mandate or negotiorum gestio were considered to be among “the like debts” to accounts by a merchant against his customer—Dickson on Evidence, section 487; Drummond v. Stewart, February 19, 1740, M. 11,103; Saddler v. M'Lean, November 18, 1794, M. 11,119; Donaldson v. Ewing, December 10, 1819, Hume's Decisions 481. (2) The action was competently brought under the Act of 1867, on the authority of Sandys v. Lowden & Rowe, November 26, 1874, 2 R. 7 (Just. Ca.).

Judgment:

At advising—

Lord Justice-Clerk—I am not inclined to interfere with the Sheriff's judgment here. He heard all the witnesses in the case on the merits, and we cannot distrust his decision on this part of the case. Then on the two preliminary points the defender has pleaded—(1) that the action is cut off by the triennial prescription; and (2) that the form of action is incompetent under the Debts Recovery Act. In regard to this latter point, no doubt obscure enough, questions may arise under the statute if we go strictly to work, but it is obvious that the intention of the statute is that it should apply to small accounts arising amongst dealers in the ordinary way, and its purpose is to give a cheap remedy for their recovery, and I do not think it was in the least intended to limit it to such debts as would have fallen under the Triennial Prescription Act of 1579. This is the interpretation which was given of the statute in the case of Sandys v. Lowden & Rowe, referred to in the Sheriff's note, and I think he is right in adopting it here. In regard to the first point, applying the ordinary rules, where the claim arises out of the contract of mandate, the plea of triennial prescription, in my opinion, cannot be competently pleaded. In conclusion, I would merely add, that I do not think the statutes of 1579 and 1867 run on the same lines, the latter being much wider in its terms.

Lord Young—I am of the same opinion. The Debts Recovery Act of 1867 is certainly oddly enough expressed, and has been copied from the language used in the Act of 1579. The class of debts which can be sued for under it are “housemaids, men's ordinaries, servants' fees, merchants, accounts, and other the like debts.” This language, which might have been perfectly intelligible in 1579, reads oddly enough in 1867. The defender here says in the present action, which is brought after a lapse of three years, if the debt falls within the words as used in the Act of 1579, then it is prescribed under that Act; if, on the other hand, it does not fall under those words, it cannot be sued for under the Act of 1867, and the action is incompetent. Now, rightly or wrongly (I assume rightly), it has been decided in the Court of Justiciary that the words, or some of them, had a different meaning in the two Acts, although they have been copied from the one into the other. Lord Neaves says—“Some of the language certainly appears to be provincial, or, as I should rather say, peculiar to Scotland. But the words ‘merchants accounts’ are not. I think it is safer in construing an imperial Act, unless the contrary is expressed, to read words in their present and prevalent meaning, in so far as they have had a meaning. It is different with words unintelligible to English ears. But the words ‘merchants accounts’ are perfectly intelligible as English words, though in a wider sense than what is generally held to be their sense in the Scotch Act of 1579.” Well, that blunts the point of one of the defender's pleas, and I do not doubt that the Act of 1867 is applicable, and that the action may be competently brought under it. I have some difficulty about the Act of 1579, though I have no desire to dissent from the judgment now to be pronounced, as I think it right that this case should take an end. But I should have felt it my duty to dissent but for the view which your Lordship has adopted—that the Sheriff here, on evidence which we think reasonably supported, has decided that the sum concluded for is composed of advances under the defender's mandate, and there is authority for holding that the Act of 1579 is inapplicable to such. Putting it in this way I do not dissent. On the more general view, I do not think a writer would get rid of the Act of 1579 by limiting his account to outlays. I do not mean large sums advanced, but to deeds and writings copied by his clerks, and to payments to porters, and other charges of the same kind.

But guarding myself against sanctioning the inapplicability of the Act of 1579 to cases of that sort, and limiting my views to this, that the Sheriff has, on evidence which we must consider sufficient, held that there were outlays made substantially under the mandate of the defender, I think the action should take an end, and I do not dissent.

Lord Craighill.—I agree in thinking we should dismiss this appeal. There are three defences presented in this case, viz—First, the triennial prescription; Second, the incompetency of procedure under the Debts Recovery Act; and Third, on the merits it is urged that the party

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employed to do the work was John Grant, who had been paid for all expenses incurred. Now, as regards the first defence, I do not think that the triennial prescription operates here. There are two kinds of charges which are not affected by the statute:—1st, charges for money laid out on mandate—The Sheriff has cited one amongst other cases which go to establish this; and 2nd, charges made for what are simple cash advances. This latter point has been well recognised for some time, and if I am not mistaken in my recollection, it has been held in dealing with writers' accounts that where cash advances are not connected with particular charges for work done, they may be separated from these items and from the operation of the Act, and even where the items in a business account are things incident to cash advances, they follow the latter as accessory to principal even though of their own nature they would fall under the triennial prescription. The Sheriff, I repeat, has found here that the claim arises out of a contract of mandate, and therefore that thereby the operation of the triennial prescription is excluded, and I in that view concur with him.

The Lords therefore dismissed the appeal, and affirmed the judgment.

Counsel:

Counsel for Appellant— G. Smith— Rhind. Agent— Robert Menzies, S.S.C.

Counsel for Respondent— M'Kechnie— Kennedy. Agent— John Macpherson, W.S.
1881