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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Cameron [1879] ScotLR 16_685 (28 June 1879) URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0685.html Cite as: [1879] ScotLR 16_685, [1879] SLR 16_685 |
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Page: 685↓
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Inhibition and arrestments used on the dependence of an action of damages were withdrawn on consignation of a sum in bank by the defender. A sum of damages was decerned for, to be paid in equal yearly instalments during the pursuer's tenancy under the lease. There was a break in the lease in the tenant's favour. Held that the consigned money might be uplifted on caution being found for the instalments to come due up to the date of the break, and that the rule that diligence cannot be used for a debt which is either future or contingent did not apply.
The pursuer in this case was the lessee of the Chevalier Hotel, Fort-William, of which the defender was the proprietor. The lease was for ten years from Whitsunday 1876, with a break in favour of the pursuer at the end of five years. In June 1878 the defender set up an opposition hotel in Fort-William. The pursuer consequently raised this action of damages, and used inhibition and arrestments in the dependence, which were withdrawn on the defender consigning the sum of £1000 in the Bank of Scotland to abide the result of the action, and subject to the order of the Court. The Lord Ordinary ( Craighill) found for the pursuer, and assessed the damages at £500, but ordained the defender “to make payment to the pursuer of the said sum of £500 sterling by equal yearly instalments, beginning payment of the first of these instalments as at Martinmas 1878, the second at Martinmas 1879, and so forth, making payment yearly thereafter during the pursuer's tenancy of the Chevalier Hotel under the said lease, but no longer, with interest.” His Lordship thereafter pronounced this interlocutor—“Grants warrant to and authorises the Bank of Scotland to pay to the said defender the balance of the money consigned in their hands, conform to deposit-receipt, with interest accrued thereon, and warrant upon the clerk to deliver up the said deposit-receipt for that purpose, and decerns, and that both on a certified copy of this interlocutor.”
Page: 686↓
The pursuer reclaimed, on the ground that the defender was entitled to uplift the balance (£500) of the consigned money only on finding caution for the future instalments of the damages.
Argued for her—The circumstances here were very special, and the pursuer was entitled to have the security she asked for. The arrestments were recalled on the defender consigning the money in bank to abide the result of the action, and the mere fact that the Lord Ordinary had spread the payment of the damages over eight years for the convenience of the defender was surely not to deprive the pursuer of the benefit of the consignation, to which she certainly would have been entitled had decree been given in the usual way.
Argued for the defender—The general rule was that an arrestment would be recalled if the debt was future or contingent, unless the debtor was vergens ad inopiam, which was not the case here.
Authorities — Symington v. Symington, Dec. 3, 1875, 3 R. 205, 2 Bell's Comm. 69.
At advising—
The general rule is that diligence cannot be used for a debt which is either future or contingent, but this rule applies chiefly to cases where the debt arises out of some contract between the parties, and where the law naturally holds that if the party requires a security for payment of his money he will obtain that security at the time when he entered into the contract. That principle appears to me to be the foundation of the rule, but it has hardly a clear application to a case like the present, and it had hardly a clear application to the case of Symington, which, however, I do not think is an authority here, as it depended on circumstances which arise out of the peculiar relation of husband and wife. In the present case I have certainly a strong impression that the circumstances of the Lord Ordinary awarding damages and making the sum payable by annual instalments is not of itself a sufficient reason for depriving the pursuer of the benefit of diligence or of the consignation which comes in place of it, and so far as the instalments will certainly become payable, I think she is entitled to the security. I do not think that this is a violation of the general rule of law that it is not competent to use diligence in security of a future debt. The pursuer will therefore be entitled to have so much of the consigned money left in bank as will meet the instalments down to 1881, or the defender must find caution for their amount.
Counsel for Pursuer (Reclaimer)— Trayner— J. P. B. Robertson. Agents— Waddell & M'Intosh, W.S.
Counsel for Defender (Respondent)— Dean of Faculty (Fraser)— Strachan. Agents— Mitchell & Baxter, W.S.
