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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell (Alexander's Executor) v. Mackersy [1905] ScotLR 43_107 (06 December 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0107.html Cite as: [1905] ScotLR 43_107, [1905] SLR 43_107 |
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Page: 107↓
[Sheriff Court of the Lothians and Peebles, at Edinburgh.
Expenses — Process — Appeal — Failure to Inform Sheriff as to Position of Authoritative Decisions a Ground for Refusing Successful Party Expenses of Appeal.
The law-agent of a deceased lady, who at her death was his debtor for the amount of a business account, was employed by her executor to realise her estate. The estate turned out to be of less value than the amount of the business account.
In an action by the executor against the law-agent for payment of the amount realised by the deceased's estate, held (1) that the executor was not a trustee for the creditors of the deceased, but was simply the representative of the deceased and debtor to her creditors and creditor to her debtors, and (2) that consequently the pursuer's claim was extinguished by compensation.
Globe Insurance Company v. Mackenzie, August 5,1850, 7 Bell's App., 296; and Stewart's Trustee v. Stewart's Executrix, May 21, 1896, 23 R. 739, 33 S.L.R.. 570, followed. Gray's Trustees v, Royal Bank, November 27, 1896, 23 R. 199, 33 S.L.R. 140, disapproved.
A Sheriff in an action before him granted pursuer decree following a decision of one of the Divisions of the Court of Session founded on by the pursuer. That decision was contrary to a previous decision of the House of Lords, which had not been quoted to the Division. The defender failed to point out this omission to the Sheriff.
In an appeal, the Court, while following the House of Lords decision and recalling the Sheriff's judgment, allowed no expenses in the Court of Session to either party, both being responsible for the position which made the appeal necessary.
Page: 108↓
On 17th December 1904, James Mitchell, residing at 4 Picardy Place, Edinburgh, executor of the late Mrs Catherine Mitchell or Alexander, who resided at Bowman Cottage, Liberton, raised in the Sheriff Court at Edinburgh an action against William Robert Mackersy, Writer to the Signet there.
The following narrative of facts in the case is taken from the opinion of Lord Kyllachy—“The pursuer in this action, which comes up from the Sheriff Court, is the brother and executor-dative of a lady who died in 1904 leaving a very small estate—an estate consisting only of some policies of insurance and household furniture, the whole being valued at about £44. The defender had been the lady's law-agent, and was, or claims to have been, at her death, her creditor for a sum of about £52—a sum arising upon a business account which has not yet been taxed but is otherwise not disputed. There are, it appears, some other creditors whose claims are of small amount, but sufficient—along with the defender's claim—to make the estate insolvent. This, however, was not at first realised, and the pursuer employed the defender, who had made the deceased's will, to ingather the estate such as it was. The defender thus became debtor to the executry in a sum of £28 odds, which it is now admitted was the net sum realised after deducting the expenses of realisation. For this sum he is now sued by the executor, the summons being restricted to the amount mentioned.”
The pursuer stated, inter alia, the following pleas—“(1) The defence stated is irrelevant. (2) The defender being due and resting-owing to the pursuer the sum sued for, decree should be pronounced for same, with interest and expenses as craved.”
The defender stated, inter alia, the following plea—“The said deceased … at the time of her death, and the defender, being mutually debtor and creditor, the defender pleads compensation to the extent of the sum sued for, in partial extinction of her said indebtedness to him.”
The Sheriff-Substitute ( Henderson), on 3rd March 1905, pronounced an interlocutor sustaining the first plea-in-law for the pursuer, and granting him decree for the sum sued for.
Note.—“… The pursuer … refuses to recognise the defender's right to retain the Balance to meet to any extent the business account said to be due by the deceased. In taking this view of his rights I think the pursuer is quite correct. On the authority of the case of Gray's Trustees v. Royal Bank, November 27, 1895, 23 R. 199, it seems perfectly clear that the executor here never was a debtor to the defender for the earlier account. The funds now claimed are executry funds ingathered by the defender as agent for the executor, and as such cannot be retained by the defender in compensation of any claim which he may have against the deceased. …”
The defender appealed to the Sheriff ( Maconochie), who on 31st March pronounced an interlocutor adhering to the interlocutor appealed against.
Note.—“… With regard to the question argued to and decided by the Sheriff-Substitute, I am clearly of opinion that the view of the law stated in the note to the interlocutor appealed against is sound; indeed, no argument was seriously stated against the decision. On these grounds I dismiss the appeal, but in respect it is admitted that the defender has recently paid £9 towards the sum for which decree has been granted, the decree must be varied to that extent.”
The defender appealed to the Court of Session, and argued—An executor being eadem persona cum defuncto, the defender here, as a creditor of the deceased, was entitled to set off the deceased's debt to him against his debt to the executor— The Globe Insurance Co. v. Mackenzie, February 16, 1849, 11 D. 618, and August 5, 1850, 7 Bell's Appeals 296; Stewart's Trustee v. Stewart's Executrix, May 21,1896, 23 R. 739, 33 S.L.R. 570; Erskine, bk. iii. tit. ix. 46. The case founded on by the Sheriff (Gray's Trustees v. Royal Bank, November 27,1895, 23 R. 199, 33 S.L.R. 140) was a bad decision, in which the Globe Insurance Co. was not cited to the Court.
Argued for the pursuer and respondent—The maxim eadem persona, &c., was not applicable to a case of this sort. Gray's Trustees, a Second Division case, was authoritative in this Division, and must be followed in preference to Stewart's Trustee, a First Division case. Gray's Trustees had been followed by Lord Stormonth Darling in Hewitt v. Symons & Macdonald,’ January 10, 1896, 3 S.L.T. 231 and 333.
The pursuer, however, not accepting this view of the matter, brought, as I have said, the present action, and on the defender pleading
Page: 109↓
Now, in these circumstances, we might perhaps have had some difficulty as to our procedure if there had been no judgment of this Court subsequent to the case of Gray's Trustees—no judgment reaffirming the law as laid down in the case of The Globe Insurance Company. I am not sure that even on that assumption we should have been justified in ignoring, or hesitating to give effect to, a judgment of the House of Lords, a judgment plainly applicable and of indisputable authority. But we are I think relieved of any difficulty on that head by the fact that, in a case which shortly followed the case of Gray's Trustees (I refer to the case of Stewart's Trustee v. Stewart's Executrix, May 21, 1896, 23 R. 739) the decision in the Globe Insurance Company's case was considered and its authority recognised. Having regard to that circumstance, we are I think not only entitled but bound to recal the Sheriffs’ judgments and to remit for further procedure.
As to expenses, these, so far as incurred in the Sheriff Court, may depend upon the ultimate issue of the cause—that is to say, upon the question how far the defender's claim is well founded on its merits. But as regards the expenses in this Court, I should be for allowing no expenses to either party, both parties being responsible for the position which made the appeal necessary.
The
The Court sustained the appeal.
Counsel for Pursuer and Respondent— Hunter— Monro. Agent— John Forgan, S.S.C.
Counsel for Defender and Appellant— Maclennan, K.C.— A. M. Anderson.Agent— W. R. Mackersy, W.S.
