Scottish Court of Session Decisions

This was an action at the instance of D. Howard Smith, an enrolled law-agent in Edinburgh, against three parties, named respectively Harding, Cornelius, and Clunas, the last-named being the sole partner of the firm of Clunas & Sey, for payment of an account for professional services rendered by him. The question arose out of business done in connection with the sequestration of a party named Levy, and the opposition to an application for the benefit of cessio following upon it. The pursuer, on 10th April 1876, received written mandates, in supplement of previously received verbal instructions, from each of the three de fenders to act for them in the Sheriff Court in opposing the cessio, and subsequently they each gave written authority to the pursuer to appeal the Sheriff's decision, by which cessio had been granted, to the Court of Session. The defender Clunas, however, refused to allow his name to appear in the appeal, but agreed verbally to pay £3, 3s. towards the expenses. Two other parties named Scott and Forrest at this stage likewise gave mandates to the pursuer. The account sued for was made up and rendered on 2d November 1876. A separate statement was made up of the sums for which each was liable. The whole amounted to £89, 17s., and besides being rendered to the defenders, it was rendered to Forrest and Scott, “upon the footing, ” as the pursuer averred, “that each of the co-obligants would pay an equal share, but without prejudice to the pursuer's right to hold each liable for the whole account.” Forrest and Scott settled their portion of the account by a payment of £10 each. The receipts given them were in the following terms:—“Edinr. 24th November 1876.—Received from, the sum of ten pounds stg., as in full of my account against him in connection with Levy's sequestration and cessio, this receipt being given and taken without prejudice to my claims against Mr Cornelius and Mr Harding and Mr Clunas for balance of said a/c.”

The defenders were now sued as liable singuli in solidum for the unpaid portion of the account. The defenders Harding and Cornelius answered that the pursuer had not been employed by them prior to 10th April, and that they gave the mandates on condition that they would not be charged more than £7. The defender Clunas denied employment.

The pursuer, inter alia, pleaded—“(1) The defenders having employed the pursuer to perform the business and make the cash advances referred to in the account libelled on, they are legally bound to pay the charges and advances incurred under their instructions. (2) The defenders Henry Harding and William Cornelius are liable to the pursuer singuli in solidum of the account in question. (3) The defenders Clunas & Sey, and David Clunas as partner of that firm and also as an individual, are liable conjunctly and severally with the other defenders for the sum of £22, 5s. l0d. pro tanto of the total amount of the account referred to.”

The defenders Harding and Cornelius, inter alia, pleaded—“(2) Assuming it to be true, as stated by the pursuer, that he has discharged Scott and Forrest of all liability for the account sued for, he has thereby discharged the defenders;—at least he has thereby discharged them for all but their own share of the account. (3) The defenders not having employed the pursuer for any

Page: 100↓

part of the business charged in said account prior to 10th April 1876, they are entitled to be assoilzied so far as that portion of the account is concerned. (4) With regard to the account for the appeal, the defenders having consented to prosecute said appeal only on condition that the pursuer's claim against them for expenses should not exceed £7, the pursuer is not entitled to charge them for any further amount than said sum. (5) With regard to the whole of the account in which the defenders employed the pursuer, the employment having been given to take proceedings only in combination with the other creditors before-named, the defenders can only be made liable for their proportion of said account along with said other creditors. (6) The pursuer is bound to give credit for all payments received from said other creditors.”

At the proof which was led in the cause the pursuer gave the following evidence regarding the rendering of the accounts:—“In making out my account I anticipated that having acted in a friendly way all throughout these proceedings the parties would not see one of them pay more than another, and that they would settle the matter in a fair way as between themselves. I therefore put at the end of that account a schema of division, just to make it in a businesslike form, so that they might readily ascertain the sum payable by each. That scheme is on the account. All the parties but Mr Clunas were to pay share and share alike, and Mr Clunas was to pay his share of the Sheriff Court expenses, but so far as regards the Court of Session expenses these were to be restricted to three guineas. Credit has been given for these three guineas in this action in so far as regards the proportion that will be paid by the other defenders.”

The Lord Ordinary on March 29, 1877, pronounced the following interlocutor:—

“The Lord Ordinary … In the first place, Finds as matters of fact—(1) That the employment of the pursuer by the defenders Henry Harding and William Cornelius was given on 10th April 1876; and that Thomas Scott and James Forrest were also employers of the pursuer at this time, and so long as the said defenders continued their employment in the same matters as those relative to which the defenders' employment was conferred; (2) That the employment of the pursuer by the defenders Clunas & Sey was given on 17th April 1876, and had reference to the same business as that upon which the pursuer was employed as aforesaid by the other defenders—that is to say, opposition to Levy the bankrupt's application for the benefit of the cessio bonorum; (3) That this application having been granted by the Sheriff of Edinburgh, the defenders Henry Harding and William Cornelius, in conjunction with the said Thomas Scott and James Forrest, employed the pursuer, without any limitation as to the extent of the costs for which liability was to be incurred, to reclaim to the Court of Session against the deliverance to this effect; and thereupon, as well as on an agreement by the defenders Clunas & Sey, to undertake liability to the extent of three guineas towards the expense of this proceeding, that portion of the account sued for, which has reference to procedure in the Court of Session, was incurred; (4) That the pursuer, for a payment of £10 from each of the said Thomas Scott and James Forrest, has discharged both of all further liability for the costs of any portions of the proceedings in the Sheriff Court and in the Court of Session which are covered by the account sued for; and (5) That the said Thomas Scott and James Forrest, as well as the defenders Henry Harding and William Cornelius and Clunas & Sey, are now and all along have been solvent, and able to discharge their respective liabilities to the pursuer in the premises: In the second place, Finds as matters of law—(1) That the defenders Henry Harding and William Cornelius are each liable to the pursuer in one-fourth of the account sued for incurred to the pursuer between the 10th and 17th April 1876, in one-fifth of the said account incurred between and including said 17th April and the close of the procedure before the Sheriff, and in one-fourth of the expenses incurred to the pursuer in the said procedure before the Court of Session, but this always under deduction of the three guineas for which, as aforesaid, the defenders Clunas & Sey agreed to become liable on account of the expenses last specified; and (2) That the defenders Clunas & Sey are liable in one-fifth of the account sued for, incurred between and including 17th April 1876 and the close of the proceedings in the Sheriff Court, and in the sum of three guineas, to which extent the said defenders undertook liability as aforesaid on account of the said proceedings in the Court of Session, ” &c.

The pursuer reclaimed, and argued—The case was one of employment. The balance unpaid of Forrest and Scott's share was chargeable against the others. The receipt given to them was not a discharge, but merely an undertaking not to sue them. There was joint employment, which inferred liability singuli in solidum. To exclude that there must be some special agreement.

Argued for the defenders—There was a special agreement with each party, and the method in which the accounts were rendered showed this. They claimed that Forrest's and Scott's whole shares were discharged, and no part could be claimed from them. [ Lord Justice-Clerk—There are cases against that view. The discharge of one co-obligant with a reservation does not destroy recourse against the others.] Smith discharged these two defenders of his whole claim against them.

Authorities— Walker v. Brown, M. Appx. 1, vote Solidum et pro rata; Bell's Prin., 59–60; Anderson v. Sinclair, M. 14, 706; Chalmers v. Ogilvie, M. 14, 706; Brand v. Wilson, Hume 336; Webster v. M'Lellan, July 2, 1852, 14 D. 932; Grant v. Wishart, January 17, 1845, 7 D. 274; Crawford v. Muir, October 29, 1873, 1 K. 91, 2 K. (H. of L.) 148.

At advising—