Scottish Court of Session Decisions

Andrew Carrick, doctor of medicine in the county

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of Gloucester, died in 1837, leaving a trust-disposition and deed of settlement dated 10th March 1837, and codicil thereto dated 13th March 1837.

His estate was duly administered according to the law of England, and in the course of the administration an order was made by the Chancery Division of the High Court of Justice on 27th April 1871, appointing Henry Stobbs Pattisson, Frances Ann Ralph or Pattisson, and James Hugh Ralph, to be the administrators of the estate, with power to uplift, sue for, and recover all sums addebted to the deceased, and thereafter to distribute the same under the directions of the Court.

On 24th January 1878 an order was pronounced in this administration suit by Vice-Chancellor Hall, by which it was declared that according to the true construction of Dr Carrick's settlement the gift thereby made to descendants of the children of the testator's aunts did not include more remote descendants than grandchildren of such aunts. This order was subject to appeal until 24th January 1879.

While this order was still capable of being appealed, a further order was pronounced on 9th August 1878 by which Vice-Chancellor Hall directed that £34,000 3 per cent. consols should be sold and the residue divided as specified in a schedule thereto appended. This schedule specified the members of the class so entitled, and amongst others was “the legal personal representative of Alexander Allan, when constituted,”—one-half of one-ninth.

In October 1878 Mr Patrick, a solicitor in London who acted on behalf of the plaintiffs in the administration suit, took out letters of administration in favour of Mrs M'Vicar, wife of Hamilton M'Vicar, Calderbank, by Airdrie, as administratrix of the estates of Alexander Allan. This was done with Mr M'Vicar's authority.

In virtue of a power of attorney granted by Mr and Mrs M'Vicar, dated 15th November 1878, Mr Patrick on 21st November 1878 received from the Paymaster-General a cheque on the Bank of England for £1523, 12s. 6d., payable to Mrs M'Vicar as the legal personal representative of Alexander Allan. This cheque Mr Patrick paid into his own account, and on the same date sent to Mr M'Vicar a cheque, payable to Hamilton M'Vicar or Janet M'Vicar, his wife, for £1442, 16s. 10d., being the said sum of £1523, 12s. 6d., less £80 deducted for costs and charges.

On 16th August 1878 notice of appeal was given by the plaintiffs against the order of Vice-Chancellor Hall of 24th January 1878, and on 26th August 1879 the Court of Appeal reversed the judgment, and declared in lieu thereof that according to the true construction of the will the gift to the descendants of the testator's said aunts, or to the descendants of the children of such aunts respectively, included all lineal descendants of every degree ( Ralph v. Carrick, L.R. 11 Ch. Div. 873). In consequence of this decree an inquiry was ordered to be made as to the amounts which had been overpaid to the several beneficiaries under the former orders.

This inquiry was conducted by the Chief-Clerk of the Chancery Division, who on 25th January 1882 issued a certificate showing that the sum of £1523, 12s. 6d. was to be paid into Court to the credit of Ralph v. Carrick by Hamilton M'Vicar, for wife, as legal personal representative of Alexander Allan. This certificate was docqueted—“Approved the 21st day of February 1882. Charles Hall, V.C.”

On 8th June 1883 an order was made by Mr Justice Kay by which it was ordered “that the plaintiffs be at liberty to take such proceedings as they may be advised against the several persons named in the schedule hereto, for the recovery of the several sums therein mentioned.” The schedule contained the name of “Hamilton M'Vicar, Calderbank, by Airdrie, £1523, 12s. 6d.” This was an action in the Court of Session at the instance of Henry Stobbs Pattisson and others, plaintiffs in the administration suit of Ralph v. Carrick, against Hamilton M'Vicar, for payment of £1523, 12s. 6d. with interest at 5 per cent. from 21st November 1878.

The pursuers stated the facts above mentioned, and pleaded—“The defender being addebted to the pursuers, as plaintiffs foresaid, in the principal sum and interest sued for, decree ought to be pronounced in terms of the conclusions of the summons, with expenses.”

The defender in his statement of facts stated that his wife had received the sum of £1523, 12s. 6d., less £80, 15s. 8d., and that she had immediately thereafter proceeded with the distribution of the money among the persons entitled, according to the instructions of Mr Patrick. She retained as her own share the sum of £239, 12s. 10d. The whole of these payments were made before any appeal was taken against the orders of Vice-Chancellor Hall. The defender, on behalf of his wife, stated that he was willing to make payment to the pursuer of this sum of £239, 12s. 10d. The defender further stated that he “did not receive the sum sued for, or any part thereof, His name, if appearing in the order of 8th June 1883, has been inserted per incuriam, and without his having an opportunity of appearing to oppose the same.”

The defender pleaded—“(1) The averments of the pursuers, so far as material, being unfounded in fact, the defender is entitled to be assoilzied. (2) The sum received by the defender's wife, as administratrix foresaid, for distribution, having been paid by her to the parties then in right of the same, neither she nor the defender are liable in repetition thereof, any claim therefor being competent only against the parties who received the same. (3) The alleged over-payment not having been made to the defender, he is not liable in repetition, and ought to be assoilzied, with expenses. (4) The defender cannot in any event be held liable in repetition of more than the sum actually retained by his wife for her own behoof.”

A proof was allowed, and these facts were established—That neither Hamilton M'Vicar nor his wife were parties to the administration suit in England; that no notice was given to either of them. That the Chief-Clerk was to adjudicate upon the rights of parties, and that no person represented either of them in those proceedings. Indeed, the Chief-Clerk, who was examined as a witness, deponed that no party unless a party to the action can attend on such an inquiry as that directed without having liberty to attend given him by order of the Court. That after receiving the sum of £1523, 12s. 6d. from Mr Patrick, it was distributed by Mrs M'Vicar among the various persons entitled, she retaining £239, 12s. 10d. as her share, but that though this was done Mrs

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M'Vicar or her husband was aware from letters received from Mr Patrick that the order under which the money had been paid was still appealable. The letters from Mr Patrick which show that Mr and Mrs M'Vicar knew that the order of 24th January 1878 was appealable up to 24th January 1880 are quoted in the opinions of the Judges of the Inner House infra.

The Lord Ordinary (Fraser) on 27th May 1885 dismissed the action.

“ Opinion.—The defender in this action is sought to be made liable for a sum of money which was distributed by his wife under letters of administration taken out by her to her father's estate. The circumstances out of which this claim arises are, that Andrew Carrick, a doctor of medicine in the county of Gloucester, who died in 1837, executed a trust-disposition and settlement by which he bequeathed one-twelfth part of the residue of his estate to the children and descendants of his aunt Mrs Mathie. The words ‘children and descendants’ led to litigation. An administration suit was instituted in the Court of Chancery in England by the pursuers of the present action, and in this suit Vice-Chancellor Hall on 9th of August 1878 pronounced a judgment construing the will, and finding a limited number of persons only entitled to share in the legacy. This decision of Vice-Chancellor Hall was appealed to the Court of Appeal in England, who on the 26th of April 1879 varied or altered the judgment of the Vice-Chancellor, and brought in under the word ‘descendants’ a great number of other persons whom the Vice-Chancellor's judgment excluded.

One of the class of persons brought in under the Vice-Chancellor's judgment were the descendants of Alexander Allan—this Alexander Allan being the father of the defender's wife. To these descendants, according to the judgment of the Vice-Chancellor, there was appropriated, of Dr Carrick's estate, the sum of £1523, 12s. 6d. In order to distribute this money it was necessary that some person should obtain letters of administration to Alexander Allan's estate; and on the advice of Mr Patrick, the solicitor in London for the plaintiffs in the administration suit, the defender's wife obtained letters of administration to Alexander Allan and his wife. Having thus a legal title to obtain payment of the money due to the representatives of Alexander Allan, the defender's wife and the defender appointed Mr Patrick to be their attorney, with authority to receive the sum of £1523, 12s. 6d., and he as such attorney procured payment of the money. After deducting his own account, Mr Patrick on 27th November 1878 sent a cheque for £1442, 16s. 10d. to ‘Hamilton M'Vicar, Esq., and Janet M'Vicar,’ which cheque was duly received by these two persons, and the money therefor was got from the bank. They immediately deposited it upon deposit-receipt; and in accordance with the instructions they received from Mr Patrick, the defender's wife proceeded at once to distribute the funds among the representatives of Alexander Allan, obtaining from each of those representatives the receipts produced in process, of which the following is a specimen:—‘£239, 12s. 9d.—Received from Janet M'Vicar, wife of Hamilton M'Vicar, manager of ironworks at Calderbank, Airdrie, the sum of £239, 12s. 9d. sterling, being my proportionate share of the residue of £34,000 consols, part of Dr Carrick's estate inherited by the late Alexander Allan and Mrs Janet Allan, now deceased, as detailed in statement sent and subscribed by me as correct on 12th day of December 1878.— Wm. Allan, New York, January 21, 1879.’ All these payments were made upon the authority of Vice-Chancellor Hall's judgment, and to the parties pointed out in that judgment. In consequence of the reversal of the Vice-Chancellor's decree, it turned out that some of the persons to whom the defender's wife had made payments were not entitled thereto. Of course, if the defender be bound to pay back the money that was sent to him, he will have his action against the persons who received it without any title thereto; but it turns out that some of them are in New Zealand and others in America, and are in such circumstances of impecuniosity as to render it very probable that the defender would never recover any sum from them. This, of course, is a very hard case for him if the present demand be well founded. The order of the Court of Appeal was as follows:—‘If any amount so received by way of payment, or carrying over as aforesaid, shall appear to be in excess of the amount so payable to such persons respectively under this order, the amount of such excess, and the persons by whom the same is payable, are to be certified. And it is ordered that the persons who shall be certified to have received such amounts in excess, do, within such time as shall be directed in the certificate of the result of such inquiry, pay what shall be certified to be the amount of such excess due from them respectively into Court to the credit of the said cause “ Ralph v. Carrick, 1870, R. 157.”’ The further procedure seems to have been this:—The plaintiffs in the administration suit appeared before the Chief-Clerk of Mr Justice Kay, and he then prepared a schedule as described by him, as follows:—‘Particulars showing what amounts have been received by any of the persons named in the first column of the second schedule to the said order, either by payment to them or by carrying over to their accounts in the said cause, pursuant to the order of the 9th August 1878, and the said amounts so carried over to the said accounts which have since been dealt with or paid out, and the amount payable to the same persons respectively in accordance with the declarations in the said order declared pursuant to the order on further consideration, dated the 24th January 1878, as varied by the said order of the 26th of April 1879, and the names of the persons who have received by way of payment or carrying over an amount in excess of the amount so payable to such persons respectively under the said order of the 26th day of April 1879, and the amounts of such excess, are set forth in the schedule hereto. The total amount thereof is the sum of £7744, 10s. 2d., the amounts of such excess appearing in the sixth column thereof. The said several persons who have so received amounts in excess, or to whose accounts they have been carried, are respectively to pay the amounts so received by them respectively in excess as set forth in the said sixth column into Court to the credit of “ Ralph v. Carrick 1870, R. 157.”’ In the schedule appended to this report there is this entry—‘Hamilton M'Vicar, for wife, as legal personal representative of Alexander Allan, £1523, 12s. 6d.’ This sum is the amount now sued for in this action.

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The defender did not in point of fact receive this sum, because there were deductions made from it, such as Mr Patrick's account and Government duties; and if there could be liability enforced for any sum under this action there would be a necessity for inquiry as to the exact sum to be accounted for.

The certificate of the Chief-Clerk is no judgment of a court of law; but it is said that such a judgment was obtained from Mr Justice Kay in the following terms ‘It is ordered that the plaintiffs be at liberty to take such proceedings as they may be advised against the several persons named in the schedule hereto for the recovery of the several sums therein mentioned.’ Among the several persons named in the schedule occurs ‘Hamilton M'Vicar, Calderbank, by Airdie, £1523, 12s. 6d.’

Having obtained this permission by Mr Justice Kay to raise an action, the plaintiffs in the administration suit come to the Court of Session demanding immediate judgment against the defender Hamilton M'Vicar. A proof was allowed as to how the Chief-Clerk's certificate had been obtained, and it turns out that no notice was given to the defender M'Vicar to the effect that the Clerk was to adjudicate upon the rights of parties, and no person appeared on behalf of M'Vicar. Mr Patrick expressly says in his evidence that he did not appear for him; therefore the Chief-Clerk in putting the defender's name down as a party responsible for the £1523 which had been paid to his wife as administrator of Alexander Allan's estate, did so in absence of the person whom he made responsible. It appears from the examination of Mr Peake, the Chief-Clerk of Mr Justice Kay, that the insertion of the name of the defender upon the list is not final, but may be objected to even now before a Chancery Judge.

Now, the law as to the enforcement of foreign judgments (not regulated and dependent upon positive statute) is this—that if a judgment be given by a court of law in a foreign country having jurisdiction over the parties, and which has fairly heard their proof and their arguments, such judgment will not be examined on the merits in another country where it is sought to put it in force. There is one decision of the Court of Session where a different rule was laid down in the following terms:—( Southgatesv. Montgomerie, 9th February 1837, 15 S. 507) ‘A foreign decree, founded on for execution in this country, affords only prima facie evidence of the truth and justice of the claim of the pursuer, and is liable to be impugned on cause shown by the defender.’ This case has not been followed in the broad terms thus expressed. The judgment of a foreign court of competent jurisdiction is more than prima facie evidence; it is conclusive, and is given effect to. And this is the view now substantially adopted in every country except that of France, which insists upon reciprocity. If the judgment of a French court be not enforced in a foreign country, neither will the French courts enforce the judgments of the courts of that country in France. This narrow view has never been adopted in England, Scotland, or America.

But, on the other hand, another rule is as completely established, viz., that a court of law is not bound to enforce anything but the final judgment of a foreign court. No interlocutory judgment, however peremptory it may be, can be laid before the foreign court and the assistance of that court invoked for its execution. All lawyers who deal with this branch of the law are agreed upon that subject, and no more need be necessary than to refer to decisions by the Courts of England. In Patrick v. Shedden (29th April 1853, 22 L.J., Q.B. 283) the Court of Queen's Bench refused to enforce a decree of the Court of Session granting interim execution for payment of the expenses in the Shedden litigation, and this upon the ground that there was no final judgment in the cause. So in the case of Paul v. Roy ( 21 L.J., Chan. 361), it was determined by the Master of the Rolls, Lord Romilly, that an order by the Court of Session upon a party to consign a sum of money in a process of multiple-poinding would not be enforced in England,—‘Held that no final judgment had been obtained; that this Court would enforce a final judgment if final; that the order made was not final; and that this Court would not enforce an interlocutory order of a foreign court.’

It is needless after these cases to cite further authority. The liability of Hamilton M'Vicar on account of his wife's administration of the fund is rested solely on the certificate of the Chief-Clerk. No judge has pronounced him to be responsible for his wife's proceedings as administratrix of her father's estate; and it is not clear whether liability for his wife's acts is to be determined according to the law of England or the law of Scotland, the country of his domicile. No doubt Mr Patrick, the solicitor for the plaintiffs, sent to him and to his wife a cheque in their joint names, and he endorsed this cheque in order to enable his wife to get the money, so as to distribute it. Whether this apparent intromission by him would make him responsible for his wife's acting is a question that is not raised upon this record, and upon which the Lord Ordinary is not called upon to deliver an opinion. All the ground of action in the case is that the Chief-Clerk chose to put a man's name upon the list as indebted to the estate, and that the Judge gave the plaintiffs leave to raise an action to enforce its repayment. There is here no ground of action disclosed that the Lord Ordinary can entertain, and he therefore must dismiss this action. If the pursuers have any other ground of action against the defender, they may libel it, and it will be considered, and accordingly the interlocutor is not one of absolvitor but of dismissal.”

The pursuers reclaimed, and on 27th November 1885, when the case came on for hearing, the record was amended to the following effect, viz., the pursuers added the following pleas-in-law:—“(1) The sums sued for having been paid to the defender in error, he is bound to refund the same. (2) The liability of the defender to repay the said sum having been determined by the Chancery proceedings referred to, the pursuers, who are thereby duly authorised to recover the same, are entitled to decree in terms of the summons. (3) Esto that the sum now sued for was paid to the defender's wife as administratrix foresaid the defender as her husband, and liable in law for obligations undertaken by her, is liable in repetition thereof”—the plea quoted supra being made their 4th plea-in-law.

The defenders added, inter alia, the following to their statement of facts:—“By the decision of

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the Court of Appeal, reversing that of Vice-Chancellor Hall, the defender and the descendants of Alexander Allan deceased became entitled as individuals to participate in the division of the part or share of Dr Carrick's estate bequeathed as aforesaid. According to the information supplied by the pursuers' agent Mr Patrick, the amount falling to the defender is £121, 0s. 5d., and to his wife and four other children of Alexander Allan £100, 17s. 10d. each, and to two grandchildren the sum of £50, 8s. 11d. each, amounting in all to £728, 8s. 5d. This sum the defender is entitled to retain in any action for recovery of payments in excess. A further sum from the trust-estate has now fallen to be divided between the descendants of Mrs Carrick or Mathie, of which the defender and his wife are entitled to receive £158 in addition to the £239, 12s. 10d. already received by the defender's wife, and from which the shares of the other four children and two grandchildren of Alexander Allan are increased by £400 in all; and this amount of £558 also falls to be retained by the defender, thereby reducing the amount of excess received from the estate to £239, 4s. 1d. No part of said further sums has yet, however, been received by them. The defender, on behalf of his wife, is willing to make payment to the pursuers of the sum of £239, 12s. 10d. retained by his wife as aforesaid for her own behoof.”

The pursuers' answer to this was as follows:—

“Admitted that by the decision of the Court of Appeal the defender and the descendants of Alexander Allan became entitled as individuals to participate in the division. Explained that the pursuers have obtained Stop Orders against payment of these shares, amounting, as stated, to £726, 8s. 5d., which will be applied in reduction pro tanto of the sum sued for. Quoad ultra denied.”

The defender amended his pleas-in-law by altering the numbers as follows:—1 to 3, 2 to 4, 3 to 5, and 4 to 7, and by adding additional pleas-in-law, which were founded on the amendments added to the defender's statement of facts:—“(1) The pursuers are not entitled to have decree conform to the judgment libelled, in respect (1st) that the defender is a domiciled Scotsman, and not subject to the jurisdiction of the High Court of Justice; (2d) that he was not a party to, or represented in, the said proceedings; (3d) that he received no notice of, and was not represented at, the inquiry by the Chief-Clerk, or any other proceedings which followed thereon; and (4th) that the order founded on is a foreign decree or judgment of an interlocutory nature. (2) The pursuers are not entitled to decree, in respect that the name of the defender was inserted in the said decree or judgment erroneously, and that in that respect the order of Mr Justice Kay is not in conformity with the documents on which it bears to proceed; and further, in respect that said error was induced by the pursuers, and that it admits of being now rectified on their application. (6) In any view, the defender is entitled to deduct the amounts now payable to himself and his wife, and to the descendants of the late Alexander Allan, who participated in the previous distribution.”

Argued for the pursuers and reclaimers—1. Decree-conform should be pronounced. The matter was res judicata in respect of (1) the judgment of the Court of Appeal, which displaced the defender's title by reversing the judgment of Vice-Chancellor Hall; and (2) the approval by Vice-Chancellor Hall on 21st February 1882 of the Chief-Clerk's certificate, by which it was found that M'Vicar was liable to repay the sum of £1523, 12s. 6d. Although there might not have been original jurisdiction of the English Court over the defender, yet he had prorogated jurisdiction by taking the money under a judgment of that Court. The liability to repay was as well ascertained by the English Court as the right to get payment. 2. If there were not grounds for asking that a decree-conform should be pronounced, then it was submitted that facts had been disclosed which would warrant the Court in pronouncing decree against the defender on the merits. This pursuers were entitled to recover either on the ground of condictio indebiti, or else on the ground that the defender got payment of this money on the implied condition that if the judgment under which he took the money were reversed he would make repayment. It was no defence to say that the money was paid in bona fide, because both M'Vicar and his wife knew that the judgment was appealable. Nor was it any defence to say that the wife alone was liable, because (1) M'Vicar interposed and intromitted with the money; and (2) M'Vicar consented to his wife, acting as executrix, and was therefore liable. The wife had no separate estate.—Fraser on Husband and Wife, i. 514, 626, and case there cited of Moens v. Von Griesheim, 12 L.T. 194; Laird v. Miln, November 16th, 1833, 12 S. 54.

The defender and respondent argued—1. There was no decree of the English Court upon which decree-conform could be pronounced. All that the pursuers had was the order of Mr Justice Kay, which ordered that they should be at liberty to take such proceedings as they may be advised. If, however, the judgment of the Court of Appeal taken together with the certificate of the Chief-Clerk, approved by Vice-Chancellor Hall, amounted, as the pursuers contended, to a simple condemnator, then it was maintained that the English Court had no jurisdiction to pronounce such a judgment. Though the English Chancery Court had jurisdiction to pronounce an order with regard to money which was in the hands of the Court, yet when the money had been paid away, that would not entitle the Court to extend its jurisdiction and follow the money. Moreover, the defender was never a party to the English suit, and had no notice of the proceedings. There were apparently further proceedings in view, so that the orders which had been made were merely ad interim. The cases of Patrick v. Shedden and Paul v. Roy, cited in the Lord Ordinary's note, were in this view applicable. 2. On the merits the pursuer could not demand repayment of the sum of £1523, 12s. 6d., because it now appeared from their answer to the defender's amended statement of facts that the sum of £726, 8s. 5d. fell to be deducted. The person whom the pursuers should have sued was Patrick, and then if he sued the defender the latter would have a strong defence founded on the letters by which Patrick had misled him. If decree was pronounced in the present action the defender would be deprived of that defence. There was no decision in Scotland to the effect

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that a husband is liable for the obligations incurred by his wife as an executrix. The case of Moens v. Von Griesheim, cited in Fraser on H. and W., i. 626, proceeded on the view that the husband had made himself liable as agent—Fraser H. and W., i, 514, 538; Spreul v. Stewart, M. 5873, 1 Br. Sup. 709.