United Kingdom House of Lords Decisions

Lord Langdale.—My Lords, in this case Lord Cottenham has communicated to me in writing his opinion; and, under standing that the noble Lord ^* who heard the case with him, concurs in the opinion he expresses, I will now read it to your Lordships:—

“This is a most important case. The original subject-matter of dispute was a bill for 20 l., which has led to direct and indirect litigation for the last twenty-four years, the expenses of which appear, independently of this appeal, to amount to 1,000 l. and more. It is not easy to charge either party exclusively with being the cause of so much evil, although the loss must unfortunately fall upon one, perhaps the least guilty of any.

The Appellant became surety for Baird, a sheriff's officer, who having been entrusted with the execution of process upon a bill for 20 l. against M'Closkie, the acceptor, by the Respondent Struthers, committed a gross blunder which rendered

_________________ Footnote _________________

* From the Journals it appears that Lord Campbell, as well as Lord Brougham, heard the argument in this case on the 1st, 5th, and 6th March. 1849. At the date of the above judgment however, Lord Campbell was on circuit; and it is probable “that the noble Lord” referred to by Lord Langdale, as concurring in the opinion of Lord Cottenham, was Lord Brougham.

Page: 396↓

the process unavailing, and led to suits by M'Closkie for suspension, interdict, and damage, to which Struthers and Baird were Defenders. An issue was directed, which was twice tried, and led ultimately to a verdict for nominal damages; but M'Closkie was held to be entitled to expenses.

Before the trial of the issue, Baird died (in September, 1837), and an attempt was made to substitute his representatives, but those parties having renounced, his interest was not represented. But after the second trial, that is in July, 1840, an intimation was made to the Appellant, as a surety, of the proceedings, and calling upon him to relieve the pursuer of all damages and expenses incurred. In answer to which he did not admit that he had become security, and declined interfering. Struthers having been compelled to pay M'Closkie's expenses, and having also incurred his own, proceeded against the Appellant Dykes as surety for the expenses so incurred, and the repayment of these expenses; and the principal interlocutors appealed from are those of the Lord Ordinary of 12th February, 1847, and of the Second Division of the Court, of the 24th June, 1847, which have held that he is entitled to what was so claimed, with some deductions, which will be presently observed upon.

It must be assumed upon the weight of authority, and particularly from the case of Clason v. Black, that by the law of Scotland, a surety in the situation of the Appellant is liable for injury sustained from the conduct of his principal, and from the expenses thereby occasioned, although no, intimation was made to him of the proceedings from which such expenses arose; but such liability would be limited to expenses necessarily or properly incurred; and the surety is therefore entitled in proceedings against him to examine into, and question the necessity and propriety of such expenses. Upon this ground, the Lord Ordinary found the Appellant

Page: 397↓

liable to the expenses generally prior to the renunciation of the representatives of Baird, with some exceptions arising from the nature of the expenses, but not, liable for the subsequent expenses. The Second Division of the Court of Session, however, did not support this limitation of responsibility; but held the Appellant liable to the expenses, subsequent as well as prior to the 7th December, 1838, with the exception of the expenses of the first trial, as they found that Struthers ought, in point of prudence, to have made intimation to the surety, and as the first trial had proved unavailing to the ultimate result of the cause. Now in that first trial, the jury had found a verdict for Struthers and against M'Closkie, and in the second, a verdict for M'Closkie and against Struthers, with one shilling damages. If Struthers be entitled to the expenses of this contest with M'Closkie, it does not appear why, fighting the battle of the officer and his surety as well as of himself, he ought to be deprived of his indemnity as to that portion of the contest in which he was successful; but as that distinction is not complained of in the present appeal, no final opinion is called for upon that point; and the same observation applies to the other matters in respect of which the interlocutors as they stand relieve the Appellant from responsibility.

All the judges recognize the rule as settled, or rather approved, in the case of Clason v. Black. But the difficulty they appear to have felt arose from the death of Baird pending the litigation with M'Closkie (in which the expenses, particularly as to the period between the date of the renunciation of his representatives, and the intimation to the Appellant), were granted, with the exception of the first trial. After Baird's death, his interest certainly was not represented, though after the intimation, the Appellant might, had he chosen, have been sisted in his place; but it is not contended

Page: 398↓

that Struthers, if liable to M'Closkie for the error committed in the suit instituted by him (and the result of the trials proves that he was so liable), would not, have been entitled to compensation and indemnity as against the officer who had committed the error, because M'Closkie had proceeded against him alone, not making the officer a party, as in Clason v. Black, and Brock v. Kemp; but in fact, the officer was made a party, and after his death, everything possible was done to substitute his representatives in his place.

The error from which the expenses arose, was complete in the lifetime of the officer. The surety, therefore, was liable for the consequences of it, and the object of the present suit is to enforce his responsibility. The utmost benefit which the surety can derive from the officer's interest not having been represented, would be the right to question the necessity and propriety of the expenses; that is, to contend that the damages sustained had not necessarily or properly arisen from the act of the officer. And of this right he has had the benefit by the interlocutors appealed from. It appears to me that they go quite as far as was justifiable in relieving the Appellant from portions of the expenses; and I cannot find in that portion which remains, any part as to which it can be said with truth, that it was recklessly or improperly incurred. When the Appellant declined to interfere, and denied his liability, he made it necessary for the Respondent so to conduct his case as to be able at the proper time to negative such defence. The other interlocutors appealed from are immaterial in the view I take of this case, and do not therefore call for any particular observation.

Much as it is to be regretted that a liability which might originally have been met by a payment of something more than 20 l., should have been increased by litigation to the sum for which the Appellant must now be held liable, I cannot see

Page: 399↓

any ground for relieving him from any part of the liability to which the interlocutors subject him, and regret to be under the necessity of proposing that the expenses of this appeal be added to such loss. The interlocutors appealed from ought, I think, to be affirmed, with costs.”

Interlocutors affirmed, with costs. ^*