Scottish Court of Session Decisions

The case is reported ante ut supra.

The steamship “Fulwood” Limited brought an action in the Sheriff Court at Dumfries against the “Commissioners of the Harbour of Dumfries and the Navigation of the river Nith,” to recover damages for injuries sustained by the “Fulwood” at Glencaple Quay. The summons did not mention the names of the Commissioners. The defences contained a statement that “the dues leviable by the defenders have all been assigned in security of borrowed money.”

The Sheriff-Substitute assoilzied the defenders; the pursuers appealed to the Sheriff, who recalled the Sheriff-Substitute's interlocutor; the defenders appealed to the Second Division of the Court of Session; and on 23rd January 1907 their Lordships pronounced the following interlocutor:—“The Lords having heard counsel for the defenders on their appeal against the interlocutor of the Sheriff of Dumfries, dated 19th February 1906, Affirm the said interlocutor, with the following additions, viz., … With these variations, find in fact in terms of the findings in the said interlocutor: Therefore dismiss the appeal, of new grant decree against the defenders for the sum of £500 with interest as craved, and decern: Find the pursuers entitled to expenses in this Court, and remit to the Auditor to tax the account thereof, and of the expenses found due in the inferior court, and to report.”

Upon the case appearing subsequently in the Single Bills for approval of the Auditor's report, the pursuers moved that decree should be granted against the Commissioners individually. The defenders opposed the motion.

Argued for the pursuers—From the defenders' own statements upon record it was plain that the Commissioners qua Commissioners had no funds. In such circumstances, rather than grant a decree which would be absolutely useless, the Court would grant decree against the defenders as individuals — see Young, &c. v. Nith Commissioners, July 6, 1876, 3 R. 991; 13 S.L.R. 636. Such a course was, moreover, in accordance with the ordinary practice of the Court, the harbour commissioners being neither more nor less than trustees, and trustees who litigate being, as was well settled as regarded liability to opponents for expenses, in the same position as if they were litigating as individuals— Anderson v. Anderson's Trustee, November 13, 1901, 4 F. 96, 39 S.L.R. 94 (Lords Adam and M'Laren); Craig v. Hogg, October 17, 1896, 24 R. 6, 34 S.L.R. 22. Especially was this so where, as here, they embarked in litigation knowing that the trust funds were exhausted. It was absurd to say that the motion was too late; the case was still before the Court, which was not being asked to do anything new, but merely to interpret the interlocutor they had already pronounced by explaining who the “defenders” actually were. A decree in the name of an agent-disburser was analogous. If the motion now made were not granted the pursuers would have to raise another action for their expenses, which was most undesirable.

Argued for the defenders—The motion was made too late. It ought to have been made when expenses were granted— Warrand v. Watson and Others, January 16, 1907, 44 S.L.R. 311. In any case, however, it could not have been granted— Young, cit. supra. The pursuers were suing a corporation and had called no persons individually in their summons, there being nothing before the Court to show who the Commissioners at the time of the raising of

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the action were, or whether they now were the same or different. There was no analogy in the case of the agent-disburser.