Scottish Court of Session Decisions

This was an action of damages at the instance of Joseph A. Symington, “for his individual interest, and also as assignee of Robert Symington,” against James Campbell of Jura.

The summons was signeted and served upon 28th June 1893.

The pursuer made averments to the following effect—“The pursuer is the owner of the vessel ‘Alarm,’ which he purchased in May 1893 from its former owner Robert Symington, who had purchased the vessel in June 1890 from James M'Allister and James Nelson.” The defender raised an action of interdict and damages against James M'Allister and James Nelson, the summons in which, containing the usual warrant to arrest on the dependence, was signeted on 31st January 1893. Robert Symington was called for his interest, but no conclusions were directed against him. About the same date the defender obtained the authority of the Lord Ordinary to put the warrant of arrestment into execution. The vessel was, by the defender's instructions, seized on 3rd February. The warrant to arrest contained no authority to arrest Robert Symington's vessel, and the seizure was illegal. The defender was aware before the date of the arrestment that the vessel was the property of Robert Symington. The defender having seized the said vessel, had since detained it in his possession. After seizure the messenger-at-arms employed … proceeded to dismantle the vessel … The process of dismantling was carried through negligently and without reasonable care and skill. Further, instead of keeping the vessel in safe harbour and taking reasonable precautions for its safety, as the defender, or those acting for him, were bound to do, the vessel was allowed to drift, and was ultimately run aground on the open beach, where it still remained,

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with the result that it had become unseaworthy. A record had been made in the said action by the present defender against the said James M'Allister and James Nelson, but after discussion in the procedure roll M'Allister and Nelson had been assoilzied with the consent of the pursuer, the present defender, and it had been subsequently found by the Lord Ordinary, by interlocutor which had become final, that it was incompetent to proceed with said action against Symington to the effect of pronouncing any decree against him in terms of its conclusions, in respect he was only called for his interest.

In article 7 of the condescendence the pursuer averred—“Serious loss and damage has been suffered by the pursuer and his author through the said illegal and wrongous action. The said vessel, when seized, was in course of a trading voyage between Belfast and Stranraer. Further, by the detention of said vessel, there has been lost the trading season which was just beginning when its seizure was effected, and to repair the vessel will take some considerable time … The said Robert Symington has assigned to the pursuer all claims competent to him in respect of the illegal arrestment or detention of the said vessel, and of the damage done to said vessel by the fault or negligence of the defender, or those for whom he was responsible.”

The assignation granted to the pursuer by Robert Symington was dated 29th June 1893.

The defender pleaded inter alia that the pursuer had no title to sue.

By interlocutor dated 20th December 1893 the Lord Ordinary ( Kincairney) reserved the defender's plea of no title to sue, so far as it related to the pursuer's claim of damages on account of the alleged illegal and unwarran table arrestment of the vessel named the “Alarm”; quoad ultra repelled the defender's plea of no title to sue, and before further answer, and under reservation of the pleas of parties, allowed parties a proof of their respective averments, with the exception of certain averments made, in answer to which it is unnecessary to refer.

The defender reclaimed, and argued—On the question of title—The pursuer had no title to sue either in his own right or as assignee of Robert Symington. In the first place, the damage averred was caused prior to the date at which the pursuer purchased the vessel, and as purchaser he could have no right to claim compensation therefor. Secondly, the assignation on which the pursuer founded was dated subsequent to service of the summons, which was the commencement of the action. A pursuer's title to sue was to be judged of as at the date of service of the summons. If his title were defective at that date, the defect could not be cured by a subsequent assignation— Malcolm v. Dick, November 8, 1886, 5 Macph. 18; Wall's Trustees v. Drynan, February 1, 1888, 15 R. 359; Stewart v. North, July 14, 1890, 17 R. (H.L.) 60; per Lord Watson, 63. Stair's dictum quoted for the pursuer applied only to cases where the action was at the instance of a party having a substantial right, but whose title was not formerly completed, e.g., an executor suing prior to confirmation.

Argued for the pursuer— On the question of title—The pursuer purchased the vessel before the action was raised, and as owner of the vessel he had an independent title to vindicate his purchase and claim damages for injury previously done to it apart from his right as assignee. Further, any defect in the pursuer's title had been cured by the assignation in his favour—Stair, iv. 38, 18; M'Andrew v. Reid, &c., July 11, 1868, 6 Macph. 1063. The assignation had been lodged before closing of the record, and no objection had been taken till the present discussion. The pursuer was the only person having a title to sue in respect of the claim of damages made in the action, and the defender's interests were reasonably protected by the assignation although it was executed after the raising of the action.

Arguments were also submitted on the relevaney, but it is unnecessary to refer to these, as the case was disposed of on the question of title.

At advising—