Alexander M'Donald v. Alexander Ross and others [1820] UKHL 2

UKHL

Alexander M'Donald v. Alexander Ross and others

[1820] UKHL 2

REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session And decided during the Session , 1820.

1 Geo . IV.

SCOTLAND.

COURT OF SESSION.

(First Division.)

No. 14

Alexander M'Donald Appellant v. Alexander Ross and others Respondents

1820 .

Army Agents having distinct accounts with the Colonel and the Paymaster of a regiment, upon the assurance of the Paymaster that he was authorized by the Colonel, and on his account, to provide certain articles for the regiment, transfer to the debit of the Colonel a sum standing in their books, originally debited to the Paymaster; and having settled accounts, and received the balance due from the Paymaster, sue the Colonel for the balance claimed as due from him, including the sum upon the debit transferred. Pending this action the Paymaster, on the requisition of the Agents, furnishes them with a letter from the Colonel, as the authority for the charge against him. The Agents being fully satisfied as to the meaning and extent of this authority, in the course of their pleadings maintain, strenuously, the right of the Paymaster to act under it; and judgment, in the first instance, is given in their favour. After they had obtained this judgment, apprehending the possibility that it might be reversed, they retransfer the sum in dispute from the debit of the Colonel to the debit of the Paymaster, giving him notice of that fact, and of the proceedings in and state of the action against the Colonel. The former judgment, on representation, was reversed; and it was held, by the Court below, and the House of Lords on Appeal, that the Agents were entitled in an action of relief against the Paymaster, to recover the sum in dispute, and the costs of the action against the Colonel.

If an action is brought for the benefit and through the intervention of another, he is bound to bear the costs of the action.

Page: 548 ↓

On the 14th of August 1794, Alexander M'Donell of Glengary, being authorized by government to raise a regiment of Highland fencible infantry, appointed the Respondents Ross and Ogilvie agents for the regiment. The appellant was about the same time appointed paymaster, of which Glengary apprised the respondents Ross and Ogilvie by a letter, dated in August 1794, by which he also directed them “to honour all drafts which might be drawn by the appellant as paymaster, and to pay no attention to the drafts of any other person, nor to issue money to them.” This letter was mislaid, and not produced in the cause.

The regiment was not completed and embodied till May 1795; and during the intermediate period the Appellant, as paymaster, drew bills upon Ross and Ogilvie, as agents, to a large amount, for the use of the regiment, without specifying the different heads of service to which these drafts were to be applied. After the regiment was embodied the appellant was continued as paymaster, and went on as before, drawing generally on account of the regiment, without specifying the different heads of service for which he drew; the drafts in the mean time stood at his debit in their books, he being entitled to a counter credit when the particular distributions should be rendered.

The money issued by government on account of a regiment, consists of, first, the levy money for recruits; secondly, the pay and subsistence to officers and men; thirdly, contingent money for incidental expenses, such as stationery, removing

Page: 549 ↓

The levy money is issued to the agents, and is drawn for by the colonel for by the colonel , or any person whose drafts on that account he authorizes to be answered. In the letter of service the levy money to be allowed is specified, and a general letter of instructions accompanies it, directing a part to be retained from each recruit, for providing slop clothing and necessaries. This is done by the officer who enlists him. He generally does so, by obtaining the articles from the regimental store, and paying for it out of the retained bounty. With the original furnishing, or subsequently replacing of these necessaries, the colonel has no concern.

The pay and subsistence of the men is also issued to the agents, and drawn from them by the paymaster. by the paymaster. The colonel has no power to draw for this money.

The contingent accounts, in like manner, are to be drawn for monthly by the paymaster; the commanding officer certifying that the account is correctly stated.

The money issued for the regular clothing and accoutrements is termed the off-reckonings. It amounts to more than is absolutely necessary for that purpose, and forms part of the emoluments of the colonel: it is the property of the colonel alone; and the paymaster-general will not pay any part of this money without an assignment of it from the colonel. When the assignment is in favour of the agents, as is usually the case, a separate

Page: 550 ↓

This fund is kept separate for the colonel; it is not paid into his personal account for pay and subsistence; and no person can draw upon it without express power from him to do so.

Army agents are bound to honour all drafts made by the paymaster in that capacity. These drafts are always in advance, and to account generally, without specifying the particular service to which the sums so drawn are to be applied. The drafts are placed to the debit of the paymaster until their accounts or distributions are transmitted, when the different articles are classed under their proper heads.

During the whole period of the appellant's continuing paymaster, the agents were in advance above the sums they received from government. Of these advances they complained to the paymaster, and requested him to send particular accounts of the application of the money. The paymaster, however, was not able to make out complete accounts of the different sums he had expended for the regiment; and matters continued in this state, the agents being constantly in advance for the regiment, till 1796, when the appellant resigned his situation as paymaster, and the colonel soon after resigned his commission. The agency of the regiment was transferred by the succeeding colonel from Ross and Ogilvie to M'Donald, Bruce, & Co. on the 25th of December 1796. Immediately upon this change the appellant called upon the agents, to have his accounts adjusted, and exhibited to them the subjoined

Page: 551 ↓

Footnote

* Account of Necessaries provided for the Glengary Regiment by Captain M'Donald, Paymaster:

Art.

1795.

£.

s s .

d d .

April 24.

To cash paid Mr. Graham, for false tails -

-

May 18.

To d° paid Duncan M'Alister, for 70 pair shoes, at 4 s s . 6 d. d.

June 17.

To d° paid Mutus, for stocks, cockades, and drummers caps

20.

To d° paid Mr. M'Lean, for plaids

- ½

To d° for 461 3 ⁄ 4 yards linen, at 1 s s . 3 d d . per yard

£.28

2 3 ⁄ 4

To d° for 12 ½ yds. cambric, at 3 s s . 9 d d .

10 ½

To d° for 20 yds. drab cloth for watch coats, at 2 s s . d. d.

To d° for 380 yards blue cloth for d°, at 2 s s . s. d. s. d.

-

To d° for 92 yds. green baize, at 1 4

10.

To d° for 63 yds. green linen, at 1 1

11.

To d° for 3 yds. blue thread, at 2 6

-

12.

To d° for ½ yard wham, at - 6 6

-

13.

To d° for 4 grs. of buttons, at 5 6

-

75</td> <td> 1</td> <td> 5 ½</td> </tr> <tr> <td> 14.</td> <td> </td> <td> To d° paid Wilson, hair-dresser, for false tails</td> <td> 1</td> <td> 17</td> <td> -</td> </tr> <tr> <td> 15.</td> <td> </td> <td> To d° for 17 pair of shoes, at 4 <style type="italic">s s . 6 d d .

16.

To d° paid d°, for 2 dozen serjeants bonnets, at 16 s s .

-

17.

To d° paid d° 50 ½ doz. privates d°, 14 s s

-

To d° paid carriage for d°

-

19.

To d° paid for 50 dz.pair of shoes, 5 s s .

127

-

164</td> <td> 14</td> <td> -</td> </tr> <tr> <td> 20.</td> <td> </td> <td> To d° paid for 43 ¼ doz. stocks, at 15 <style type="italic">s s .

21.

To d° yaid 44 dozen cockades to d°, at 5 s s

-

22.

To d° paid Mr. Ascoli, for feathers

23.

To d° paid Mr. Stevens, for 20 ½ dozen brushes, for the use of the regiment

-

24.

To d°paid Mr. Campbell, Glasgow, for cockades and rosettes

Page: 552 ↓

He required them to give him credit for this sum, and state it to the debit of the colonel, because it consisted of furnishings of that description, which the colonel was bound to furnish his regiment with from the fund called the off-reckonings, off-reckonings, allotted by government for that purpose; and the appellant stated to them, that he had express orders from the colonel to pay all such accounts and the appellant stated to them, that he had express orders from the colonel to pay all such accounts . The agents consequently

Footnote

Art.

1795.

£.

s. s.

d. d.

25.

June 20.

To 1 pattern serjeant's shirt, 6 s. s. ; and 6 privates d°, 4 s s . 2 d. d.

-

26.

To making ten watch coats, at 2 s s . 6 d d .

-

27.

To paid Urquhart, for false tails, combs, razors, &c.

-

28.

To paid bill Mr. William Shairp for plaids and tartan

-

29.

To cash paid Russell's account for shoes at Irvine

-

30.

To 4 pieces of garters given the quartermaster, for the use of the regiment

-

31.

Oct. 19.

To amount paid for shoes

-

32.

To amount paid Wormald, Fountaine, & Co. for 8 pieces drab fearnoughts, 224 yards, at 3 s s . 4 d. d. per yard, for watch coats

33.

To 2 pieces drab serge, at 4 s s . per yard

-

34.

To 14 yards white cloth, at 6 s s . 6 d. d.

-

35.

To 5 bonnets given the quartermaster for the band

-

36.

Nov. 14.

To 248 yards linen, at 1 s. s. 4 d. d.

37.

To 6 shirts ready made, at 6 s. s. 4 d. d.

-

38.

To pairs of gaiters, per invoice, account remitted

39.

To 630 turn-screws and gun-worms, brushes and prickers

40.

To 250 priv s s bonnets, at 1 s. s. 3 ¼ d. d.

£.34

-

41.

To 32 serjeants d°, at 1 s s . 6 d. d.

-

42.

To carriage of d°

-

38</td> <td> </td> <td> </td> </tr> <tr> <td> 43.</td> <td> </td> <td> To insurance on 610 <style type="italic">l. l. for clothing, &c. per account, dated March 11, 1796

Page: 553 ↓

Footnote

A. M'Donald, A. M'Donald, Paymaster.

Art.

1795.

£.

s. s.

d. d.

44.

May 4.

To freight and carriage from London of 11 bales and a box, to G. Hamilton & Co. per account

-

45.

June 4.

To cartage of 11 bales tartan from Bannockburn

46.

To 2 carts from Glasgow to Irvine, per M'Nab

-

47.

To 9 extra carts from Kilmarnock to Carlisle, 105 miles, at 6 d. d.

48.

To 9 d° from Carlisle to Brampton 10 miles, at 4 ½ d. d.

49.

To 9 d° from Brampton to Haltichistle, 12 miles, at 4 ½ d. d.

—

50.

To 9 d° from Haltichistle to Hexham, 15 miles, at 4 ½ d d .

7 ½

51.

To 13 d° from Hexham to Newcastle, 21 miles, at 4 ½ d. d.

4 ½

Sum

£.721

5 ¾

Cr.

1795.

By allowance for watch coats, from 8th May to 24th December 1795

4 ½

By d° - d° from 25th Dec. 1795 to June 1796

-

Balance, Captain M'Donald

4 ½

Remains

£.686

1 ¼

(signed)

N.B. If the allowance for watch coats from the 14th August to the 8th May is allowed by government, of course it will be put to the credit of this account.

Page: 554 ↓

This objection the agents communicated by letter to the appellant, who, in his answer to them, stated, “that he had Glengary's order (a copy of which he would send them whenever he got his papers from Edinburgh) for whatever had been furnished, and requested them to make no alteration in their accounts.”

In consequence of this communication with the appellant, the account in question was allowed to remain as it stood debited to the colonel, upon the presumption that the orders which the appellant had stated he held for furnishing; these articles would be forth-coming, and would be obligatory upon the colonel. After placing this sum to the colonel's debit, the appellant made an arrangement with Ross and Ogilvie for the balance of his account; who, after again writing to the appellant to request that he would send them the order alluded to by him as a voucher for the charge against Glengary, raised an action against Glengary, for the payment of the balance of his account, including, inter alia inter alia , the amount of the necessaries already mentioned. In defence, Glengary stated, that this particular sum had been debited to him without proper authority, and that he was therefore not bound to pay it.

Upon this defence, Ross and Ogilvie again wrote to the appellant in these terms:

possession, which may support any part of the same.”

“Your charge of 686 l l . 6 s s . 1 ¼ d d . for necessaries furnished the Glengary Fencibles, being disputed by Mr. Alexander M'Donell of Glengary, we request you will have the goodness to transmit to Mr. Anderson, W.S. Edinburgh, the original instructions given you by Glengary the original instructions given you by Glengary , or any other document in your

Page: 555 ↓

In consequence of this communication, the letter of instructions was produced by the appellant, and exhibited in the process against Glengary,—it is as follows:

“Dear Sir,

29th May 1795.

As I am about to leave this quarter for the North, in my absence it may save you further trouble to have these instructions to show, when you see it proper. You will be particular in your advancing money to officers, not exceed five guineas, as bounty, for each man brought and passed at the inspection, according to orders, in regard to appearance; and you will also, previous to the settling of their accounts, require to have the men paraded as furnished by each officer, and let those serjeants who were employed to recruit for me, as well as the Reverend Alexander M'Dowell, be there present, so as to establish their claims, and prevent future disputes. You will also be so good as to subsist the supernumerary serjeants of my appointment till vacancies occur, so as to relieve me of that burden. And I hereby beg of you to settle with the different men enlisted by me, or on my account by those so employed. As also, I authorize you to settle my private accounts, properly vouched, that may appear against me; as likewise those things ordered by my sister Miss M'Donell. You will also please to settle what appears proper to you in regard to the clothing settle what appears proper to you in regard to the clothing and other appointments of the regiment. I have moreover to request of you to get all accounts for or against

Page: 556 ↓

Dear sir,

Yours, &c. (signed) A, M'Donell A, M'Donell .

Ross and Ogilvie considering this letter a sufficient authority to the appellant to furnish the necessaries in question, on the 8th of June 1802, proceeded with their action against Glengary.

In the course of the action against Glengary the respondents presented a petition, in which the following passage occurs:

“Glengary apprised Ross and Ogilvie of the paymaster's appointment, by a letter, dated August 1794 (which has unfortunately fallen aside), and directed them to honour all all drafts which might be drawn by him the paymaster, and to pay no attention to the drafts of any other persons, or to issue money to them. The paymaster was not merely empowered to draw the pay and usual allowances of the regiment, but was also authorized, as has been admitted by the defender (M'Donell of Glengary) to uplift the levy money, the allowance for haversacks, and a variety of other allowances, with which, as paymaster, he had nothing to do. He was likewise empowered to draw the pay and allowances due to the colonel himself—a power which is seldom or never entrusted to the paymaster—and with these discharge the private accounts of Glengary. In short, this paymaster

Page: 557 ↓

equally able to pay with the colonel, and whom they always found more willing to settle his accounts; but they considered the colonel as the party primarily liable to them, and they did not wish to lend themselves to a scheme which they conceived to be unjust, by refusing to give to the paymaster the credit to which he was entitled.”

“Glengary was desirous to shake himself loose, if possible, from his obligation to repay to the agents the money they had advanced the paymaster by his instruction, and upon his responsibility, and which had been applied to the use of the regiment. He did not pretend either that the money was not actually advanced by the agents, or that it had not been applied to the use of the regiment, but he insisted that the agents had no right to make the advances to the paymaster without his authority; his object was, to have the paymaster to deal with instead of Ross and Ogilvie; in which case he would have set against the advances the balance which he pretended to be due to him by the paymaster on his own private account. In this way he wished to roll over the agents upon the paymaster, when demanding payment of a sum admittedly advanced and applied to the use of the regiment, which was advanced solely on his responsibility, and for which he was at any rate liable, as colonel of the regiment. It was a matter of in difference to Ross and Ogilvie which of the two paid the advances they had made. Had they considered both equally liable, they would have preferred coming against the paymaster, who was

Page: 558 ↓

Lord Hermand, ordinary, pronounced judgment in their favour; but in consequence of some doubts which had arisen, in a letter, dated on the 6th of July 1806, and addressed to the appellant, Ross and Ogilvie apprised the appellant “ that they had charged to his account the sum of that they had charged to his account the sum of 686 l l . 6 s s . 1 ¼ d d . for clothing disbursements, until allowed to them by the Court of Session for clothing disbursements, until allowed to them by the Court of Session .”

On the 9th of July 1808, after reconsidering the case, Lord Hermand pronounced an interlocutor, sustaining the claim of Ross and Ogilvie. Against this interlocutor Glengary put in a representation; in which he asserted: 1st, That the furnishings comprising the account in question, neither were necessary for the regiment, nor were made by the appellant; and 2dly, That Ross and Ogilvie had not made any advance for payment of the necessaries, but had merely transferred the account in question from the debit of the appellant to Mr. M'Donell's debit, upon finding that the appellant was their debtor to the extent of 2,000 l l .

15 Dec. 1808.

The Lord Ordinary thereupon appointed Ross and Ogilvie to explain “at what time, whether it was while they continued agents for the Glengary regiment, or after the agency was transferred to another house, that they placed the account of

Page: 559 ↓

1 March 1809.

In the answer to this representation, Ross and Ogilvie stated to the Lord Ordinary, that owing to the great embarrassment and confusion into which their bankruptcy had thrown their affairs, their agent had not been able to get sufficient information within the short space limited for giving in the answers, to enable them to reply pointedly to the interrogatories put by the Lord Ordinary. Ross and Ogilvie endeavoured to show that these new averments made by Glengary were not only altogether unfounded, but were contradicted by his former admissions in the cause. Upon advising the representation, with answers, the Lord Ordinary pronounced an interlocutor, by which he found, “That prior to the regulations 1798, as stated in other cases, which have occurred subsequent to the interlocutor represented against, paymasters were appointed by the colonel, or by the field officers and captains jointly, though in the circumstances of this case it is immaterial in which of these ways the pay-master of the Glengary regiment may have been appointed: Finds, that in so far as concerns the business of the regiment, no extraordinary powers were conferred on Lyndale, the original paymaster, by the letter of the 29th May 1795, relating chiefly to the settlement of accounts already contracted, nor any thing more than would have been implied from the nature of his office, and in particular that it did not empower him to draw upon the respondents

Page: 560 ↓

Page: 561 ↓

Against this interlocutor the respondents Ross and Ogilvie prepared a representation, and at the same time raised an action of relief against the appellant, in which they concluded that the defender should be decerned to repeat and pay back to the pursuers the foresaid sum of 686 l l . 6 s. s. 1 ¼ d. d. with interest thereof since the same was credited to him, and also that he should be ordained to make payment to the pursuers of “the expenses of the fore-said action presently depending against the said Alexander M'Donell of Glengary, and which hitherto have been wholly incurred in discussing objections to payment of the foresaid sum,” and of the expenses of this action.

May 13,1812.

This action being brought into Court, various orders were made upon the defender to put in defences.

In the mean time Lord Hermand, in the action against Glengary, refused the representation for the respondents, and adhered to his former interlocutor.

June 24,1812.

The respondents prepared a petition against these

Page: 562 ↓

The petition for the respondents in the other action having been appointed to be answered, answers were given in for Glengary accordingly. Upon this the respondents lodged another minute in the process against the appellant, stating, “That, upon the 23d October last, the agent for the pursuers had sent to the agent for the defender a copy of the answers which had been given in for Glengary to the said petition; but that, in order to prevent

Page: 563 ↓

The Lords of the First Division, upon advising the petition for the respondents, with answers, adhered to the Lord Ordinary's interlocutor, and found the respondents liable in expenses; whereupon the respondents enrolled the action, against which the present is an appeal, to ask decree against the defender.

The appellant gave in defences to the following effect:

“First, The defender does not conceive that Messrs. Ross and Ogilvie have any claim against him for advances made on account of the regiment raised by Glengary, as they were made to him in the capacity of paymaster and agent for Glengary.

Secondly, Messrs. Ross and Ogilvie, by having mislaid the letter of credit lodged with them by Glengary in August 1794, lost their recourse on Glengary: by this their neglect the defendant ought not to suffer.

Thirdly, If Messrs. Ross and Ogilvie had dis allowed the articles in the defender's account when it was claimed, he would have recovered the money from the regiment, which he cannot now do.

Fourthly, This claim is prescribed.”

Page: 564 ↓

Dec. 19, 1812.

When the case was debated before the Lord Ordinary, he pronounced an interlocutor, by which, in respect of the contingency between this action and the original action, still in dependence before the First Division of the Court, he made avizandum with the cause to the Lords of that division; and gave directions that the case might be reported.

The case was accordingly reported, and the following judgment was pronounced:

May 14, 1813.

“Upon report of the Lord President, and having advised the mutual informations of the parties, the Lords repel the defences, find the defender liable in terms of the conclusions of the libel, and decern, find expenses due, and allow an account thereof to be given in, and remit to the auditor to tax the same, and to report.”

The appellant preferred a reclaiming petition against the interlocutor above recited; but it was refused without answers.

Against this interlocutor the appeal was presented.

Counsel: For the Appellants, Mr. Charles Warren, Mr. Robert Grant. For the Respondents, Mr. Scarlett, Mr. West * .

July 19, 1820.

The Lord Chancellor :—This case involves two questions; the first is, Whether, under the circumstances of the case, Mr. M'Donald was liable to pay Messrs. Ross and Ogilvie the amount of money demanded by their summons? The next question is, Whether, supposing the Court of Session to have been right in awarding payment by him of that sum,

Footnote

* Now Sir Edward West, Chief Justice of Bombay.

Page: 565 ↓

When it was argued at the bar, it appeared to me proper in this case, attending to all the circumstances of it, that we should have time to consider it. I had more doubt with respect to the point, whether this appellant ought to have been charged with the expenses of the antecedent proceeding, than on the question, whether he should be charged with the sum of six hundred and odd pounds; but on looking at it again and again, I offer it to you as my opinion, that the decision of the Court of Session is right on both points. In the first place, I think the appellant is chargeable in the account, under the circumstances here stated, at the suit of these respondents and looking at the whole nature of the proceeding in the action that was brought against Glengary, as a principal, it appears to me that is fairly to be considered as an action for the benefit and behoof, and in a great measure through their intervention, the action of Mr. M'Donald himself, and that therefore he ought to pay the costs of that action. The consequence of that is, that on moving, according to the forms of this House, for a reversal of this judgment, for my own part I must say, Non-content, meaning thereby that the judgment should be affirmed, but without costs.

Judgment affirmed.