Scottish Court of Session Decisions

This was an action at the instance of Joseph Davis, money-lender, 4 George Street, Edinburgh, against Miss Anna Margaret Cadman, Trinity Lodge, Denmark Hill, London, a domiciled English woman, concluding for payment of £200. This sum was claimed in respect of an alleged bill for £200, which the pursuer averred had been granted in his favour by the defender in return for a loan made to her sister. The bill founded upon was not libelled in the summons. The pursuer claimed that the defender was subject to the jurisdiction of the Court of Session ex reconventione, in respect that she had raised proceedings against him there, seeking to interdict him from doing summary diligence under the bill in question.

The note of suspension referred to was presented by the defender and her sister on 14th January 1896, and the prayer was in the following terms:—“May it therefore please your Lordships to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondent from noting, or protesting or charging upon, or taking any steps to enforce by diligence the payment of the sum of £200 bearing to be contained in and alleged to be due by the complainers under a bill for the sum of £200 bearing to be dated the 10th day of July 1895, and bearing to be drawn by the respondent upon the complainers, or of any part of the sum alleged to be due under said bill, and to grant interim interdict, or to do otherwise or further in the premises as to your lordships may seem proper.”

The reason which was given in the complainer's statement of facts for making this application was that certain other bills had been noted and protested by the present pursuer in Scotland; that he had extracted the protests and registered them in the Books of Council and Session, and that, having taken out a certificate of registration in terms of the Judgments extension Act, he had proceeded, without notice to the complainers, to seize their furniture in England.

The complainers in the suspension process averred—(Stat. 4) “Upon 6th January 1896 the complainer Anna Margaret Cadman received an intimation from the respondent that an alleged acceptance by herself and her sister to him for £200 became due upon the 13th inst., and was payable at No. 4 George Street, Edinburgh. The complainers have ascertained that the said acceptance bears to be dated 10th July

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1895, and to be signed by them, but it contains the name of no drawer. Its terms are referred to. It is explained and averred that at the hearing of this note before the Lord Ordinary on the Bills on 1st February 1896 the respondent voluntarily and deliberately produced said bill, founded upon it in support of his pleas, and lodged it in process as one of his productions. The Lord Ordinary on the Bills, after renewed discussion upon the terms of the bill, passed the note without caution, in respect that the bill was not signed by the person giving, and the respondent reclaimed against this judgment. He again founded upon the bill, which was still unsigned by any drawer, and was again unsuccessful. It cannot now be completed. It is not and never was a valid document of debt. The complainers received no value for said bill, and the whole of the indebtedness by them or either of them to the respondent's company was extinguished at the time when said compromise was effected. No sum has ever been received by the complainers, or either of them, from the respondent in loan, and no sum is now due by them, or either of them, to the respondent.”

The complainers pleaded—“The respondent ought to be interdicted from proceeding to do diligence upon said alleged acceptance, in respect ( a) that he is now seeking to enforce his rights under it by ordinary action; ( b) that it was produced by the respondent in judgment while unsigned by him or any alleged drawer; ( c) that it does not comply and cannot now be made to comply with the provisions of sec. 20 of the Bills of Exchange Act 1882; ( d) that ex facie of the alleged bill the respondent has no right thereto; ( e) that no value was received by the complainers for said bill; and ( f) that no sum is due or payable by the complainers, or either of them, to the respondent.”

The respondent having undertaken not to proceed by summary diligence, the note of suspension was on 5th June 1896, refused by the Lord Ordinary, and the complainers were found entitled to expenses.

The pursuer in the present action pleaded that in virtue of these proceedings, which were still pending at the date of the raising of the present action on 16th April 1896, the defender had rendered herself subject to the jurisdiction of the Court.

The Lord Ordinary ( Kincairney) on 28th July 1896, pronounced an interlocutor by which he, inter alia, sustained this plea.

Opinion.—“The pursuer in this case is a money-lender, carrying on business in Edinburgh. The defender is an unmarried lady resident in England; and the pursuer seeks to recover from her the sum of £200, said to be due by a bill signed by the defender's sister Mary Loetitia Cadman, now bankrupt, and herself. The pursuer's averment is that he advanced to Mary Loetitia Cadman £175 upon the bill; that she agreed to get the name of the defender to the bill as her surety; that the defender signed the bill and handed it back to her sister Mary Loetitia Cadman, ‘with authority to put the same in circulation and hand it to the pursuer, and which was so done.’ Neither counsel was able to explain what was meant by the words ‘to put the same in circulation.’ The question on the merits is whether the defender is liable to pay the sum in the bill to the pursuer. Although the action is by a money-lender against an unmarried woman, the transaction may have been fair enough notwithstanding; and, of course, no prejudice or presumption can arise in the outset against the pursuer.

“Several preliminary questions of considerable difficulty and of some importance have been raised by the defender.

The first plea is ‘No jurisdiction,’ the defender being an Englishwoman. This is met by the plea that the defender is ‘subject to the jurisdiction of the Supreme Courts in Scotland ex reconventione.’ I am not sure that this plea is quite correctly expressed; but the grounds of it are distinctly stated. It is rested on a note of suspension and interdict by the Misses Cadman against the present pursuer, in which they crave that the pursuer should be interdicted from noting or protesting or enforcing by diligence the bill which is now in question. In that case the note was passed in the Bill Chamber without caution, and the case was afterwards brought into Court and a record was made up and closed. It was in dependence when this action was brought, but the note was afterwards refused on the undertaking of the pursuer Davis not to proceed by summary diligence on the bill. I understand it is now out of Court.

Now, the defender maintained that this action could not warrant the plea of reconvention. It was submitted that an action of reconvention was only permitted for the protection of a native defender in the primary action brought by the foreigner; and that here Miss Cadman was in substance the defender, although nominally the pursuer of that action; because the action was of the nature of a suspension of a threatened charge. But I think that was not so; for Davis had not protested the bill, and had never threatened to use diligence on it. I think the present defender must be held to have been one of the pursuers of that action, as she appeared on the face of the petition to be. Further, the defender contended that the plea of reconvention only arose where the two actions were of the nature of cross-actions, and where the one claim could not be set against the other. No doubt the plea of reconvention usually arises in such circumstances.

Now, it does at first sight seem rather paradoxical to say that an action brought to prevent the enforcement of a bill by the pursuer should enable him to raise an action in this Court for the bill. The consequence was, I daresay, not contemplated by the defender.

I am of opinion, however, in this case, that the plea of no jurisdiction is bad, and that the Court has power to entertain this action, and that in respect of the dependence of the former action when this action was brought into Court.

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If the former action had raised no other question than whether summary diligence could proceed on the bill, there might have been a good deal to say for the argument, that it could not support jurisdiction in this action. But if the record be referred to, it seems plain that it did more than that, because the whole questions on the merits were raised in that action, just as they are raised here. There was no doubt, another question, viz.—Whether the bill could warrant summary diligence? But the whole merits were raised, and the question whether the Misses Cadman were liable on the bill was submitted to the Court by the Misses Cadman themselves. That is to say, the present defender being one of the pursuers of that action, submitted to the Court the question whether she was liable for £200 under this bill. That is the question on the merits submitted in this action by Davis, the pursuer. The two actions are not about similar or connected matters, but about precisely the same matter; and I conceive that the defender having submitted to the Court that question, cannot now turn round and plead no jurisdiction when the same question is submitted by the pursuer. The case stands the test expressed by Lord Kinloch in Thomson v. White-head, 25th January 1862, 24 D. 331, 349, where he says—‘I should be disposed to limit the admissibility to the case where there is such contingency as would make it proper that actions should be conjoined.’

In Morison & Milne v. Massa, 8th December 1866, 5 Macph. 130, the Lord President says—‘The broad principle is this, that a party appealing to the jurisdiction of the Court renders himself amenable to that jurisdiction, and eminently so in reference to the same matter of dispute.’ It might be contended that the present defender, by her pleadings in the former action, had prorogated the jurisdiction of the Court to try the question of her liability under the bill; and there is high authority for the view that jurisdiction by reconvention is a species of prorogated jurisdiction, per Lord Deas, in Morison & Milne v. Massa, and in Thomson v. Whitehead. It does not greatly signify by what name the power of the Court to entertain the question is expressed.

I am of opinion on the grounds expressed, that the defender is barred from objecting to the jurisdiction of the Court to decide the very question which she herself submitted in the previous case.

It does not signify that the former action is, or may be now, out of Court— Allan v. Wormser, Harris, & Co. 8th June 1894, 21 R. 866.

I have felt a little difficulty arising from the statement by the pursuer on the record—‘It is denied that the question of the defender's liability for the sum contained in said bill is competently raised, and can be determined in said process,’ meaning the action of interdict. That is rather a plea in law than a statement of fact. It is extremely adverse to the pursuer's plea of reconvention, and I should have had much difficulty on the question of jurisdiction had I thought the proposition sound. But I do not think it sound. I think the question of the defender's liability could have been determined in the action of interdict, although I doubt whether the pursuer Davis could have got an efficient remedy in that action.”

The defender reclaimed, and argued—This was not a case in which reconvention could be applied on the ground of appropriateness, for it would be much more convenient to try the case in the English Courts, the witnesses being resident in England. Nor did the principles apply upon which reconvention depended, as laid down in Thomson v. Whitehead, January 25, 1862, 24 D. 331. The defender had not convened the pursuer to this Court, but had come here in order to exclude the question of her liability on the bill from being decided except in the Courts of her own country, and to guard herself from being made the subject of summary diligence, which could be made effectual against her in her own country. It was clear from the case of Thomson, and from the opinion of Lord Rutherfurd Clark in Allan v. Wormser, Harris, & Company, June 8, 1894, 21 R. 866, at 874, that reconvention was substantially founded upon the implied consent of a foreign defender to have the questions at issue tried in this forum. It was impossible to imply that consent from proceedings intended to have the very opposite effect.

Argued for respondent—The defender had come to this Court for a remedy, and the theory of reconvention was that if anyone came to a Court for a remedy which it could afford him, then his opponent was entitled to detain him there for the decision of a cognate matter. This certainly was a cognate matter, for the whole question of the validity of the bill had been raised by the defender in her pleas and averments in her suspension process. But the pursuer had been unable to obtain his full remedies in a suspension, and had accordingly raised the present action. There certainly was such contingency as would make it proper to conjoin the two actions.

At advising—