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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Goodwin & Hogarth v. Purfield [1871] ScotLR 9_151 (8 December 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0151.html Cite as: [1871] SLR 9_151, [1871] ScotLR 9_151 |
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Page: 151↓
Held that arrestments laid on to found jurisdiction, and also on the dependence in a previous action in which decree had been given and implemented, did not avail to found jurisdiction in a new action between the same parties for recovery of the expenses incurred in executing, &c., the previous arrestments.
Held farther, that a petition presented by the defenders during the dependence of the previous action, to have all the arrestments recalled as groundless and oppressive, was a proceeding incidental to the previous action, and was in no sense itself an actio conventionis, so as to found a plea reconventionis against the petitioners in a new action at the instance of the respondents, the pursuers in the previous action.
The appellants in this action, Messrs Goodwin & Hogarth, who were ship chandlers in Ardrossan, had, on 5th December 1870, obtained warrant from the Sheriff of Ayr to arrest the schooner ‘Speed,’ of Balbriggan, in Ireland, in order to found jurisdiction against the master thereof, John Purfield, for himself and as representing the owner. This arrestment was executed on 6th December. Also on the 5th day of December a small-debt summons was taken out at the instance of Messrs Goodwin & Hogarth against the said John Pur—field, founding on the above-mentioned warrant, to arrest jurisdictionis fundandce causa, and arrestment on the dependence of this action was executed on the following day. At the same time a petition for dismantling, &c., the ship was presented, and warrant granted, and execution of arrestment and dismantling was expede on the same 6th day of Decernber.
Page: 152↓
On the 16th December decree was obtained in the small-debt action by Messrs Goodwin & Hogarth for the sum of £2, 5s. 6d., with £1, 18s. of expenses. This was immediately paid by the defender. In the meantime, on 7th December, the day following the execution of all these arrestments, a petition was presented to the Sheriff of Ayr by the said John Purfield, the master, and also by George Purfield, the owner of the said vessel ‘Speed,’ craving to have the arrestments recalled as “obtained and used maliciously and oppressively, and without any grounds whatever.” This petition was not, however, insisted in, as the arrestments came practically to an end upon implement of the decree pronounced in the small-debt action on 16th December. It was allowed, however, to remain in dependence till after the 22d December 1870, when the present action was raised.
The present action was brought also in the Sheriff-Court of Ayr, by Messrs Goodwin & Hogarth against the previous defender John Purfield, as master and as representing the owner of the said schooner ‘Speed,’ to recover the sum of £6, 1s. 8d., being the expenses incurred by them in executing the warrants of arrestment, &c., of the said ship and apparelling, &c., and also for the sum of 5s. per week for storage. The grounds on which this action was founded were (1) that arrestment jurisdictionis fundandœ causa had been already executed against the defender, and (2) that he was himself the pursuer in an action against the present pursuers to have the said arrestment and others loosed.
Several defences were stated for the defender, but he did not take the plea of want of jurisdiction. The Sheriff-Substitute (Robison), however, pronounced the following interlocutor:—
“Ayr, 4th May 1871.—The Sheriff-Substitute having heard parties' procurators and made avizandum of the process, finds that this Court has no jusisdiction to entertain this action, it being neither a maritime cause (M'Glashan, 4th edit., sects. 303–305) nor founded upon arrestment jurisdictionis fundandœ causa (ibid. sec. 390); while the defender is a foreigner, and was furth of Scotland when the action was raised, and has been cited edictally under letters of supplement, and not by personal service; therefore dismisses the action; finds no expenses due.
Note.—The action is for recovery of the expenses of certain proceedings taken against a ship in the course of vindicating a debt claimed by the pursuers from the defender in a small-debt complaint lately depending in the Court at Ayr, and decided in favour of the pursuers. In defence, while liability for these expenses is denied, complaint is only made that this action ought likewise to have been raised in the Small Debt Court, instead of the Ordinary Court, there being no question made on the point of jurisdiction. In short, the Sheriffs jurisdiction is conceded. But to prorogate the jurisdiction of the Sheriff Court is not competent to a foreigner (M'Glashan, sec. 339).
In these circumstances, expenses have not been allowed to the defender, and none could have been awarded to the pursuers.”
The Sheriff ( Neil Campbelll) adhered on appeal, adding the following note:—“The pursuer's ingenious argument has not satisfied the Sheriff. In the first place, it is quite clear that but for arrestment jurisdictionis fundanœ causa or reconvention he Sheriff could hare no jurisdiction in the case, the defender being a foreigner and absent from the country when the action was raised. In the second place, the arrestment jurisdictionis fundandœ causa founded on by the pursuer has reference, and is limited, as his application shows, to a particular specified debt, amounting to £2, 10s., which was sued for in the Small Debt Court, and for which decree was obtained and implemented by payment. The sum now sued for is a different debt of larger amount, and sued for in a different Court; in short, it is not the debt referred to in the petition for arrestment jurisdictionis fundandœ causa. In the third place, there is no reconvention. The petition for loosing the arrestments laid on in a depending action is not of the nature of a his or action to which the principle of reconvention applies. It contains no claim or demand of a kind that could be compensated by a claim in any action at the instance of the respondent. The reasoning in the case of Thomson v. Whitehead, Jan. 25,1862, 24 D. 331, which the pursuer quotes as in his favour, is wholly against the idea of reconvention being applied to such a case.”
The pursuer reclaimed to the First Division of the Court of Session.
Scott and Campbell Smith, for them, insisted on the two pleas of arrestment and reconvention founded on in the summons, and also upon the additional pleas of prorogation and contract or quasi contract, as founding jurisdiction.
Appellant's authorites—On the competency of the appeal— Buie v. Stiven. Dec. 5, 1863 2 Macph. 208; Caledonian Railway Co. v. Fleming, Feb. 20, 1869, 7 Macph. 555. On the competency of the action— Greig v. Christie, Dec. 16, 1837, 16 S. 242; Smith's Maritime Law, pp. 57–8; Longmuir v. Longmuir, May 21, 1850,12 D. 926; Morison § Milne v. Massa, Dec. 8, 1866, 5 Macph. 130; Smith v. Ninian, Nov. 16, 1826, 5 S. 8 (n. e. 7),
Fraser, for the respondents, contended that the appeal was incompetent, as the value of the action was below £25 (16 and 17 Vict. c. 88, sec. 24), and was not an action that should have been brought in the Sheriff's Ordinary Court at all, but in the Small Debt Court; that there had been no prorogation, and that there was no jurisdiction— Burn v. Purvis, Dec. 13, 1828, 7 S. 194. The exception as to Admiralty cases is created by 1 Will. IV. c. 69,
§ § 21, 22; and 1 and 2 Vict. c. 119, § 21. Question, Whether it is a maritime cause? Smith's Maritime Law, p. 18, and Scots Act, 1681, c. 16; Taylor, Jan. 25, 1820, F.C.
At advising—
Page: 153↓
The plea of reconvention is founded upon quite different circumstances altogether. It is founded upon a proceeding taken by the defender on 7th Dec. 1870 to obtain recall of the arrestments. The small debt action was raised on the 6th December, and on that or the previous day the arrestments were laid on. It was on the following day therefore that the petition for recalling the whole arrestments, as groundless and oppressive, was presented. It was during the dependence of the small debt action that the petition was brought. That action, and that alone, made it competent. The petitioners could not have gone to any other than the Sheriff—Court of Ayr. The proceeding was therefore incidental to the small debt action. If the petitioners were to have the arrestments recalled at all—and on the face of it they seem to have had a perfectly good ground of complaint—then their only course was to go to the Court in which the original action was laid. This makes the petition for recall clearly incidental to the small debt action. The question therefore comes to be, Whether this petition can be looked upon as an actio conventionis, so as to found a plea of reconvention? It is quite true that the petition was still in dependence at the time this present action was brought, though it seems to have hung over rather as a matter of negligence than anything else. The question of law comes up therefore purely enough, Whether such a petition can be looked upon as an actio conventionis? I do not think it can. I do not think that the petition was an action in any proper sense of the term at all. I do not think that it was an action in which the petitioners, the defenders in the present action, submitted themselves voluntarily to the jurisdiction of the Sheriff of Ayr. They had been brought into Court before him; proceedings had been taken against them which they considered unjustifiable; and they had no resource but to go before him for redress. This is in no sense of the term an actio conventionis, and therefore I think the Sheriff-Sub stitute and the Sheriff did right in dismissing this action.
The other Judges concurred.
Solicitors: Agents for the Appellants— Fyfe. Millar, & Fyfe, S.S.C.
Agents for the Respondent— Millar, Allardice, & Robson, W.S.
