Scottish Court of Session Decisions

In August 1883 Andrew Brodie and Malcolm Neil, weavers, Kilbarchan, Renfrewshire, raised an action of declarator of right of way against Thomas Mann of Glentyan. Judgment was pronounced in the Court of Session, and in the House of Lords in favour of the defender, with expenses, which amounted in all to £860, 19s. 4d.— Brodie, &c.v. Mann,June 13, 1884, 11 R. 925, 21 S.L.R. 657, revd. May 4, 1885, 14 R. (H. of L.) 52, and 22 S.L.R. 730.

By assignation dated 11th February 1887 Mann assigned to Andrew Rose, commercial traveller, 605 Great Eastern Road, Glasgow, his decree for these expenses. The assignation was in these terms—“ Considering that an action of declarator and interdict was raised against me in the Court of Session at the instance of Andrew Brodie, weaver, Ewing Street, and M.alcolm Neil, weaver, Ewing Street, both in the village of Kilbarchan and county of Renfrew, and that after sundry procedure, including an appeal to the House of Lords at my instance, and a petition to the Court of Session at my instance to have the judgment of the House of Lords applied, I was assoilzied from the conclusions of that action, and the said Andrew Brodie and Malcolm Neil were decerned and ordained to make payment to me of the sum of £438, 6s. 5d. sterling, being the taxed amount of expenses of process incurred by me in the Court of Session, including the expenses of the said petition and procedure thereon, and the sum of £1, 3s. 8d. as the dues of extracting said decree, conform to extract decree of the Court of Session dated 3rd December 1883, and 10th June and 11th July, both in the year 1885, and extracted 13th August 1885, as the same in itself more fully bears, and considering also that in the said appeal to the House of Lords the said Andrew Brodie and Malcolm Neil, respondents, were ordered to pay or cause to be paid to me the costs incurred in respect of the said appeal, the amount thereof to be certified by the Clerk of the Parliaments, conform to order and judgment of the House of Lords dated 4th May 1885, and that the said costs were certified to amount to £421, 9s. 3d., conform to certificate given under the hand of the Depute-Clerk of the Parliaments dated 7th August 1885; and now seeing that for certain good and onerous causes and considerations, but without any money being, paid to me, I have agreed to grant these presents; therefore I have assigned and conveyed, as I do hereby assign,

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convey, and make over, to and in favour of Andrew Rose, commercial traveller, 605 Great Eastern Road, Glasgow, his executors or assignees, the said sums of £438, 6s. 5d. 8d £1, 3s. 5d. contained in the said decree of the Court of Session, and the said sum of £421, 9s. 3d. contained in the said certificate by the Depute-Clerk of the Parliaments amounting said several sums to £860, 19s. 4d., and whole interest due and to become due there-on during the not-payment, together with the said decree of the Court of Session, the said order and judgment of the House of Lords, and the said certificate by the Depute-Clerk of the Parliaments, and the whole tenor and contents thereof, with all that has followed or that may be competent to follow thereupon in so far as relative to the said several sums, with all my right, title, and interest in and to the premises, surrogating and substituting the said Andrew Rose and his foresaids in my full right and place in the premises, with power to him and his foresaids to ask, crave, sue for, and uplift the sums of money hereby assigned, and upon payment to grant discharges or conveyances thereof, either in whole or in part, and generally to do everything ih the premises that I might have done myself before granting hereof; which assignation above written I bind myself and my heirs and executors to warrant to the said Andrew Rose and his foresaids from all facts and deeds done or to be done by me in prejudice thereof, and I have herewith delivered up to the said Andrew Rose the foresaid extract-decree of the Court of Session and certificate by the Depute-Clerk of the Parliaments to be used by him and his foresaids as their own proper writs and evidents in all time coming.”

Rose then raised an action for payment of the sum of £860, 19s. 4d. against James Stevenson and various other parties residing in Kilbarchan. The pursuer averred in Cond. 9 that although the action of declarator against Mann had been raised in the names of Andrew Brodie and Malcolm Neil, it was truly instituted and carried on by and for behoof of the defenders, who were the true domini litis, and directed and controlled the same; that Brodie and Neil were selected for their poverty, with the object of preventing Mann, if successful, from recovering his expenses from the defenders, who were members of a committee appointed at a public meeting to carry on the action.

The pursuer pleaded—“(1) Defenders being the real domini of the action of declarator and interdict mentioned in the condescendence, are liable conjunctly and severally in payment of the expenses incurred by the said Thomas Mann in the said action, and decerned for in his favour, and the pursuer, as assignee of the said Thomas Mann, is entitled to decree as concluded for with expenses.”

The defenders in their answer to Cond. 10 averred that the assignation conferred no right on the pursuer to sue them; that it was merely an assignation of a decree against Neil and Brodie, the pursuers in the action of declarator, who were not defenders in the present action. They averred that Mann was the true dominus litis, and that he should be ordained to sist himself, and that the pursuer had no means to carry on a litigation in the Court of Session.

The defenders pleaded no title to sue.

The Lord Ordinary ( Lee) on 11th January 1888 pronounced this interlocutor:—“The Lord Ordinary having heard counsel in the procedure roll upon the defenders’ preliminary plea, before answer allows the defenders a proof of their allegations in answer to condescendence 10, and to the pursuer a conjunct probation; and appoints said proof to take place before the Lord Ordinary on a day to be afterwards fixed.

“ Opinion.—In this action the pursuer founds upon an assignation in his favour by Mr Thomas Mann, of two sums amounting together to £862, 19s. 4d., being the expenses connected with a litigation in the Court of Session and House of Lords, for which Mr Mann obtained against Andrew Brodie and Malcolm Neil, other parties to the litigation, a decree of the Court of Session to the extent of £438, 6s. 5d., and an order and judgment by the House of Lords to the extent of £421, 9s. 3d.

The pursuer alleges as his ground of action that the debtors named in the assignation, and against whom alone the debt is constituted (viz., Andrew Brodie and Malcolm Neil), were merely nominal pursuers in that litigation, and were truly put forward by the defenders in this action in order to secure them against liability for expenses.

The first question raised by the defenders is, whether the pursuer by virtue of the alleged assignation had a title to sue such an action? The assignation makes mention only of the sums themselves, together with the decree of the Court of Session, the order and judgment of the House of Lords, ‘and the whole tenor and contents thereof, with all that has followed or may be competent to follow thereupon, in so far as relative to the said several sums, with all his the said Thomas Mann's right, title, and interest in and to the premises.’ But although there is no mention made of any right to sue other debtors as being truly liable in the sums contained in the decree against Brodie and Neil, the assignation contains the usual clause surrogating and substituting the pursuer in Mr Mann's full right and place in the premises, with power to ask, crave, sue for, and uplift the sums of money thereby assigned, and upon payment to grant discharges, and generally to do everything in the premises that the said Thomas Mann might have done himself before granting the said assignation. The assignation contains the usual warrandice from fact and deed.

I have had some difficulty in sustaining the title, more especially as no authority or precedent was cited for allowing the assignee to a debt constituted against one person to raise action against another as being the true debtor. I have come, however, to be of opinion that the. title is sufficient. Assignations carry to the assignee all rights that corroborate or strengthen the right conveyed, though these corroborative rights should not be specially mentioned in the conveyance. (Ersk. iii. 5, 8; Stair iii. 1, 17; Oultie v. Earl of Airlie, reported by Stair, 2 Br. Sup. 197; Lyell v. Christie, March 11, 1823, 2 S. 288). It appears therefore to be sufficient to entitle the assignee to proceed against all persons who are liable that the debt itself be conveyed with all the cedent's rights therein.

II. Another point raised by the defenders, however, is that Mr Mann, and not the pursuer, is the real dominus litis in the case. It is alleged that Mr Mann is the person really interested in the action, that he gave instructions for raising it, and is now directing it, and supplying funds for carrying it on. It is also alleged that the pursuer is a person without means, who has entered into a collusive agreement with Mr Mann for the purposes of this action. As no consideration appears to have been given for the assignation, I think that the same course must be followed here as was adopted in the case of Jenkins v. Robertson, 7 Macph. 739; and that before deciding anything as to the pursuer's right to sue this action, without either bringing forward Mr Mann or finding caution for expenses, the defenders must be allowed a proof of the allegations contained in answer to Cond. 10, so far as bearing on this point.”

The defenders reclaimed, and argued—The assignation did not confer a right of action against anyone except the two persons named in the decree— Cultie, 2 Br. Supp. 197. What was assigned was the decree against Brodie and Neil— Mathieson v. Thomson, November 8, 1853, 16 D. 19.

Argued for the pursuer—The only question at present was the value of the assignation. Mann had a title to sue, and he assigned all he had to Rose. This was not a corroborative right; it was the right itself which the pursuer sought to make good— Hepburn v. Tait, May 12, 1874, 1 R. 875; Thomson v. Magistrates of Kirkcudbright, January 23, 1878, 5 R. 561; Kyle v. Kerr, November 16, 1822, 1 S. 20; Barbour v. Bell, January 25, 1831, 9 S. 334; Potter v. Hamilton, July 19, 1870, 8 Macph, 1064.

At advising—