United Kingdom House of Lords Decisions

Lord Brougham.—In the course of this argument, from which we have derived all the aid to be hoped for, I have had very considerable doubts upon more points than one; but I agree with my noble and learned friend, that, upon all the points upon which I entertained doubts, it is unnecessary that we should now decide. In the first place, the question arises, whether or not the act of parliament, 2 and 3 Viet. c. 41, has been repealed. It is unnecessary to dispose of that question. And, in the next place, as to the validity of the Master's order of the 9th August 1854, I say nothing whatever upon these points. There are other points, particularly in various parts of the very able and elaborate judgment of the Lord President in the Court below, upon which considerable doubts occurred to my mind, in examining that judgment from time to time, but into these matters I do not at all enter. The question, and the only question for us in this stage of the cause, is, whether the relation of debtor and creditor existed between Wryghte, the petitioner for the sequestration, and Sir Francis Walker Drummond, the deceased, whose representative was Sir James Walker Drummond, the party before us. I entertain no doubt whatever upon the grounds stated by my noble and learned friend, that that relation did not subsist between them; and it is enough for us to be assured of that, in order to support the judgment of the Court below in refusing the sequestration.

Lord Cranworth.—If this case had to be disposed of upon what I may call the preliminary point, namely, whether the Statute originally giving sequestration, the 2 and 3 Vict. c. 41, was repealed, and a new Statute substituted for it, I give no intimation as to what opinion I might have been called upon to express; but this I do not hesitate to say, that, in determining that question, I would have endeavoured to stretch language to the very utmost limits in order to shew, that the effect of that second Statute was not what is supposed, viz., to put an end to proceedings that were actually pending at the time that it passed. I concur, however, with my noble and learned friend on the woolsack, and with my noble and learned friend who has preceded me, that, on this appeal, we need not consider how that question ought to be decided, because, whether the act was in force, or whether it was not in force, at the time these proceedings were pending, I think the interlocutor of the Court below was perfectly right.

The doubt which occurred to my mind for some time during the argument was this—Whether or not, throwing overboard altogether the order of the 9th August 1854, and all which followed upon it in Scotland in the way of registration, the proceedings might have been sustained simply by the order of the Master of the 8th of March 1856, directing this application for sequestration grounded upon the previous order to pay the call. That was a view that for some time I thought possibly might have been sustained; but, upon further consideration, I think that also fails upon the same grounds upon which my noble and learned friend thinks it fails.

With reference to the order that was registered, the Master, of course, could not validly direct the sequestration unless the Statute authorized it. The Statute authorizes the application for the sequestration of the estate of a deceased person at the instance of a creditor of that person. Now Wryghte certainly was not a creditor; and although, by means of the English act of parliament, he is put in loco creditoris, so that it cannot be gainsaid as against him, that he is not a creditor in whose place he is substituted, that is purely English machinery, which is not introduced into Scotland at all. And if the judgment of the Master, establishing the fact that Sir Francis Walker Drummond was a debtor, may be taken as a judgment not conclusive—at least, a foreign judgment valid primâ facie in Scotland—you cannot import into Scotland, with that primâ facie judgment against the estate of Sir Francis, the machinery of English law, whereby that is to be enforced. Upon that short ground, (I do not mean to say that there may not be other grounds,) it appears to me, that no sequestration could be granted under the Statute of 2 and 3 Vict. cap. 41, and consequently that the interlocutor was right.

Lord Wensleydale.—I am entirely of the same opinion as my noble and learned friend on the woolsack, and the other noble and learned Lords who have preceded me. I found my opinion entirely upon the 4th clause of the 2 and 3 Vict. cap. 41. I had very grave doubts upon the other parts of the case, but it is unnecessary to give any opinion upon them. I confine myself to that clause; it is necessary under that clause that the deceased should be a debtor, in some sense, at the time of his death; and that Wryghte should be a creditor—not Wryghte personally, but Wryghte as representing creditors at the time when the order for the payment of the call was made. I think, that neither of these points is clearly established, and I think, that the judgment of the Lord President in the Court of Session, though it may be open to some of the objections which have been stated in the course of the argument, was perfectly correct in that respect. Those two facts are not made out; and therefore I concur with my noble and learned friend in the opinion that the judgment should be affirmed.

Mr. Daniell.—Would your Lordships think it right to make an addition to the order with regard to costs, that the costs of all parties should be paid out of the estate?

Sir Hugh Cairns.—There is an absolute order of the House for the payment of costs.

Mr. Daniell.—What I suggest does not interfere with the order of the House.

Lord Chancellor.—Out of what estate do you mean?

Mr. Daniell.—Out of the estate of the Royal Bank of Australia.

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