Scottish Court of Session Decisions

This was an action at the instance of The Delhi and London Bank, Limited, against Mrs Loch, executrix of John Adam Loch, for payment of £6000.

The origin of the debt claimed was a bond granted by the deceased J. A. Loch in 1847 in favour of the Delhi Bank Corporation for

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a sum of £1400. According to the pursuers' averments the bank had been looted and the bond destroyed during the Indian Mutiny, but thereafter an adjustment of accounts had taken place between the bank and Mr Loch, bringing out the amount of the latter's indebtedness; in 1859 the bank had instituted proceedings in the Court at Delhi against Loch in respect of the debt, and in 1860 had obtained decree against him for 18,869 rupees; in 1865 the Delhi Bank Corporation had been wound up, and the pursuers had taken over their whole assets and liabilities.

The pursuers further averred (in the record as amended in the Inner House)— “(Cond. 2) … It is a rule and practice of the Court at Delhi that signed judgments and other papers in connection with cases and in possession of the Court are destroyed after a certain period. In accordance with this rule and practice the original judgment in the action against Mr Loch was destroyed in September 1877, and the pursuers are unable to obtain the same or an official extract thereof. But the registers of the said Court are in existence, and these show that judgment was granted, the date of the judgment, the amount of the sum decerned for, and the judge by whom decree was awarded. A copy of an extract from the General Register of the Civil Court Office of Delhi District relative to said proceedings is produced and referred to. … An application was presented to the Court for execution following upon the judgment for the amount of the debt, costs, and interest, and an order was made authorising execution. Thereafter Mr Loch from time to time made certain payments to account, in consequence of which the pursuers did not at the time enforce the order for execution, and subsequently in the year 1870 the pursuers concluded an agreement with Mr Loch, as after mentioned, under which, upon certain conditions, they agreed not to enforce execution during Mr Loch's lifetime. … The pursuers allowed the time to elapse without obtaining an extract until the death of Mr Loch solely in reliance on the said agreement of 1870, Mr Loch's recognition of the debt, and of the pursuers' right to exact payment thereof, and on the payments to account made from time to time by Mr Loch. … (Cond. 5) From time to time Mr Loch made payments to pursuers on account of said debt. Such payments were made in 1861, 1866, 1867, and 1869. On 12th January 1868 Mr Loch, in reply to a demand by the pursuers, wrote that having resigned the Civil Service, and his annuity not being a full one, and not so large as his salary had been, it would be quite impossible for him to pay so much as £5 per month, but that he would, if the bank agreed to it, pay quarterly £10 out of his annuity for the remainder of his life. Following upon this Mr Loch, on 3rd August following, wrote pursuers remitting £30, being three quarters' payment, and undertaking that £10 per quarter would be regularly paid in future. Subsequently on 11th February, and again on 3rd May 1870, Mr Loch wrote the pursuers offering to pay £20 per quarter during his life on condition that the pursuers should refrain from taking legal steps against him during his life. This offer was accepted by pursuers, and on 27th June 1870 they wrote him, through their manager, to the following effect:— ‘Referring to your letter of the 30th March, and our rejoinder of the 5th May last, with reference to the bank's claim on you, amounting with interest to 31st December last to the sum of rupees 87,781: 3: 9: as per enclosed statement of account made up to that date, I am instructed by my directors to state that, provided you pay to us in London during your life on account of the said debt and future interest the sum of £20 per quarter commencing as on 5th May last, no legal proceedings will at any future period, so long as the said payments are regularly made, be taken against you personally by this bank in respect of your said debt or the future interest thereon. Mr Loch's letters are produced, and here held as repeated brevitatis causa. Following on said arrangement Mr Loch, on 3rd August 1870, made payment of £20, being the first quarterly instalment under the agreement, and he continued to pay the said quarterly instalments down to the date of his death. The pursuers insured the life of Mr Loch with a view to recouping themselves in part in the event of his death for the debts due by him, and he concurred in their doing so, and underwent the medical examination necessary for the purpose. (Cond 6.) The payments made by Mr Loch as before condescended on were credited to his account with the pursuers, and statements of the account showing the balance due from time to time by Mr Loch were periodically sent to him by pursuers. From 1880 to the date of Mr Loch's death these statements were rendered at the end of each period of three months. No objection was ever stated by Mr Loch to any of the statements of accounts so rendered, but on the contrary he accepted of them as correct and made his payments upon them. On 7th May 1883 Mr Loch wrote as follows to the pursuers:—‘I enclose you a cheque for £20 for the past quarter, and beg you will acknowledge its receipt. On receiving your letter of the 6th of February last with your account of the balance against me in English money, I was greatly surprised to find that it was £31,644, 8s. 8d. I cannot understand how such an immense sum can be made up considering the original sum borrowed was only £1400 in 1847, when I and my sureties signed the bond. I should like to know very much if the bank has still the original bond. At the time of the Mutiny in 1857 I had paid up £900 of it, and only owed the bank £500, and since 1868 I have paid £1120, besides other payments I made in India before I left the service. I merely state the above to show the bank that I have not only paid off the original loan I borrowed in 1847, but also £600 of interest.’”…

The defender averred that by the law of India an order for execution could not be enforced against a judgment debtor after the expiry of three years from its issue. She admitted that Mr Loch had made certain

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payments to the bank, but explained that these payments had been made in error.

The pursuers pleaded—“(1) The sum concluded for being due and resting-owing to pursuers, they are entitled to decree therefor with expenses. (3) The pursuers having in reliance on the agreement of 1870, on Mr Loch's recognition of the debt and of the pursuers' title, and on the payments to account, allowed the time to elapse during which an extract of the decree could have been obtained, the defender is not now entitled to found on the non-production of such extract.”

The defender pleaded—“(2) The pursuers' averments are irrelevant, and insufficient in law to support the conclusions of the summons.”

On 17th February 1893 the Lord Ordinary, before answer, allowed the parties a proof of their averments.

The defender reclaimed, and, after partly hearing the case, the Court adjourned it to allow the pursuers an opportunity of amending their record. After amendments by the pursuers and answers thereto by the defender had been added to the record, with leave of the Court, parties were reheard.

Argued for the defender—The averments of the pursuer were still irrelevant; they had not complied with the directions of the Court to make definite and specific statements as to the exact terms of the decree, and the causes owing to which they were unable to produce it. The casus omissionis stated by them was not a proper one, or of a nature entitling them to a proof. It was held in the case of Shaw v. Shaw's Trustees, June 13, 1876, 3 R. 813, that for “an essential part” of their case, such as this decree was, the pursuers would have to raise an action of proving the tenor. The agreement of 1870 did not help them, for it was on the decree, and the decree alone, that they could found their action.

Argued for the respondents—The defender was precluded from founding on the destruction of the decree, because, if it had not been for the agreement of 1870 under which Mr Loch admitted his indebtedness, the execution would have been carried out. The facts averred were enough to justify the Court in holding the debt had been constituted. The whole documents taken together might be adduced to show the defender's liability— Gordon v. Glendonwyn, February 23, 1838, 16 S. 645; Thomson v. Lindsay, October 28, 1873, 1 R. 65. The defender was at any rate barred by the agreement of 1870 from objecting to the validity of the claim— Shepherd v. Reddie, March 1, 1870, 8 Macph. 619.

At advising—