Robert Davidson - Abercromby v. George Lockwood and Company - Jeffre - Buchanan [1824] UKHL 2_Shaw_357

UKHL
Robert Davidson - Abercromby v. George Lockwood and Company - Jeffre - Buchanan
[1824] UKHL 2_Shaw_357
Lords Reston and Cringletie .

Subject_ Appeal — Jurisdiction — Repetition of Expenses. —

The Court of Session having suspended a charge on a bill against an indorser, and found the charger liable in expenses, which he was compelled to pay; and the charger having appealed against the interlocutor; and a decree of reduction of the bill, pending the appeal, having been obtained by the drawer; and the House of Lords having reversed the interlocutor, and remitted to the Court of Session to make certain investigations; and the Court of Session having, in respect of the decree of reduction, refused to order the expenses to be repaid to the charger, and found it unnecessary to proceed with the remit;—Held, (reversing the judgment of the Court of Session), 1. That the Court was bound to have carried the remit into execution; and, 2. That the charger was entitled to repetition of the expenses.George Lockwood and Company, manufacturers at Huddersfield in Yorkshire, were in the custom of consigning goods for sale to their agents, Mason, Baird and Company, of Aberdeen; and that latter Company, in the month of April 1809, acting on behalf of Lockwood and Company, sold woollen goods of the value of L. 1492. 14s. 9d. to a Company carrying on business at Aberdeen with Quebec, under the firm of John Robertson and Company. This Company consisted of Patrick Baird, (who was also a partner of Mason, Baird and Company), of John Robertson, and also (as was alleged) of William Carlier, in Aberdeen. On the 22d of January 1810, Mason, Baird and Company, drew a bill for the above sum upon Robertson and Company, payable three months after date, bearing to be for value in cloth to Quebec, and which was accepted by John Robertson, under the firm of John Robertson and Company. Mason, Baird and Company then indorsed the bill to Lockwood and Company, and immediately, and as per procuration of them, they indorsed it to Andrew Davidson, who again indorsed it to his brother, the appellant, Robert Davidson. By him it was indorsed to another party, and after passing through several other hands, it was ultimately returned upon him, and the subsequent indorsations scored.It appeared that, on the 12th of February 1810, Mason, Baird and Company drew another bill on John Robertson and Company, for precisely the same sum, and in the same terms, with the exception that it was payable sixty-five days after date, which, having been accepted (as was alleged) by Robertson and Company, was transmitted to Lockwood and Company. During the currency of these bills, and in the month of March, the

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An appeal was then entered by Davidson, who was compelled under an order for interim execution to pay the expenses. Thereafter, and during the dependence of the appeal, the trustee on the sequestrated estate of Mason, Baird and Company, brought an action of reduction against Davidson of the bill and indorsations, on the ground that they had been made within sixty days of their bankruptcy; and alter some litigation, he obtained decree on the 29th of January 1813, in terms of the libel. This decree was extracted, and it was admitted by the respondents that it had been duly certified and transmitted to London with the view of being founded upon in the House of Lords; but they stated, that they had been advised that, as it had not been in existence prior to the judgments appealed against, they were not entitled to produce it. On hearing the appeal, the House of Lords, on the 4th of July 1815, pronounced this judgment:—of suspension with the multiplepoinding; and that the appellant, on the contrary, in his reclaiming petition against the interlocutor of the Lord Ordinary of the 13th of June 1811, submitted to the proceeding in the multiplepoinding; the Lords cannot proceed to determine whether the process of multiplepoinding was well raised or not: but on the bill of suspension for William Carlier it is ordered and adjudged, by the Lords spiritual and temporal in Parliament assembled, that the several interlocutors complained of in the said appeal, so far as they sustain the said bill of suspension for William Carlier, be, and the same are hereby reversed; and with respect to the bills of suspension of the said John Robertson, and of George Lockwood and Company, as conjoined with the process of multiplepoinding, it is farther ordered and adjudged, that the several interlocutors complained of in the said appeal be, and the same are hereby reversed. And it is ordered, that the cause be remitted to the Court of Session in Scotland, to review (receive) such evidence as may be properly offered with respect to the two bills of exchange in question, and particularly to receive evidence upon the facts stated in the appellant's condescendence, and in the answers of the respondents George Lockwood and Company thereto, as to the nature of the dealing of the respondents, George Lockwood and Company, with Mason, Baird and Company, and the authority which Mason, Baird and Company had to indorse the bill of exchange of the 22d of January 1810, as by procuration of the respondents, George Lockwood and Company, so as to make the respondents liable to the payment as indorsers of the said bill, or in any manner to transfer such bill to Andrew Davidson, notwithstanding the indorsement made by Mason, Baird and Company in favour of the respondents, George Lockwood and Company, either by striking out the said indorsement in favour of the respondents, George Lockwood and Company, or otherwise, without making the said respondents, George Lockwood and Company, liable as indorsers of the said bill.”
“It appearing to the Lords that the appellant has not appealed from or reclaimed against the interlocutor of the Lord Ordinary of the 29th of November 1810, in the process of multiplepoinding, finding the pursuers liable only in once and single payment, or from the interlocutor of the Lord Ordinary of the 28th of February 1811, conjoining the processes

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When the case returned to the Court of Session in order to have this judgment carried into effect, the Court remitted it to Lord Reston, but refused to order repetition of the expenses which had been paid by Davidson. On coming before his Lordship, the respondents founded upon the decree of reduction as depriving Davidson of all right to go on with the litigation; and Davidson thereupon intimated his intention to raise an action of reduction reductive. Having, however, failed to do so, Lord Reston, in absence, pronounced judgment against him. He then represented, and the

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“In respect that the bill for L.1492, 14s. 9d. was made by Mason, Baird and Company as drawers thereof, and indorsers to the representer; and that their trustee, in their right, has set aside that bill by a regular decree of reduction thereof, obtained against the representer and all other parties interested in the same, declaring it to be, and to have been, from its date, void and null; finds, that the respondents are entitled to found upon that decree, because, were they to pay the bill, they would have no relief against Mason, Baird and Company, the prior indorsers, nor from the acceptor, because their right of relief is also cut off against the drawers, to whom the bill was accepted without value, if the other bill for L.1492. s. 8d. be effectual. But as the said decree of reduction took away the title of the representer to insist in his appeal in the House of Lords, as it is now pleaded to do in this Court; as it is dated above two years prior to the discussion of the appeal, and has on it a certificate for the purpose of enabling the parties to found on it in that Right Honourable House, the Lord Ordinary appoints parties to be ready to debate on the question, whether, as to the respondents, and the other parties in this cause, any plea arising on the said decree is not to be held either as proponed or repelled, or as competent and omitted.”
Davidson represented against the findings in this judgment; and, on hearing parties on the whole cause, his Lordship ordered memorials to the Court on these points:—1st, “Whether the respondents are, or not, entitled to plead on the decree of reduction of the bill for L.1492. 14s. 9d. obtained by the trustee for Mason, Baird and Company, for their behoof? and, 2dly, Whether, by the judgment of the House of Lords, the respondents are or are not precluded from setting up any plea on that decree, owing to its being properly to be considered a plea either competent or omitted in that Right Honourable House, or proponed and repelled by it?”On advising the case, their Lordships found, that “as the bill is now reduced, it is unnecessary to proceed in the remit from the House of Lords;” and found the respondents entitled to expenses. Davidson then raised an action of reduction reductive of the decree; and having reclaimed, the Court superseded his petition till the issue of that reduction. Against this order the respondents presented a petition, and the Court thereupon recalled it, and adhered to their judgment, “finding it unnecessary to proceed in the remit from the House of Lords in hoc statu,

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Davidson then entered another appeal, and maintained, —

1. That it was the imperative duty of the Court of Session to have obeyed, and carried into execution, the order and remit of the House of Lords; and that they were not entitled to refuse giving effect to that order on the ground of proceedings having been adopted during the dependence of the appeal, and of the decree of reduction, which was just to maintain, that the judgment of the Inferior Court mightldefeat the orders of the Supreme Tribunal; and, therefore, that the Court of Session ought to be enjoined to carry the judgment of their Lordships into immediate execution.2. That the Court of Session were not entitled to refuse to the appellant a warrant for repayment of the expenses which he had paid under the order for interim execution, seeing that the interlocutors finding him liable in expenses had been reversed.3. That as the decree of reduction had been obtained by the trustee of Mason, Baird and Company, to the effect of setting aside the indorsation of that Company to Lockwood and Company, and of any obligation contracted by the former of these Companies, whereby any claim could be made on their estate, this could never have the effect of depriving the appellant of his right to proceed against any other prior indorser; and as Lock-wood and Company stood in this situation, it was jus tertii to them to plead upon the decree of reduction. And,4. That even supposing they had a title to found upon the decree, they ought to have done so when the case was pleaded in the House of Lords; and if they did not do so, they had no right to resort to it now, because it must be held as falling under the plea of competent and omitted; and if they did found upon it, then it was proponed and repelled.

To this it was answered, —

1. That as the decree of reduction was in general and unqualified terms, whereby the right of the appellant to the bill was completely extinguished, and his title to insist upon the bill as a document of debt completely set aside; and as it could not competently be brought under the consideration of the House of

Footnote

* Not reported.

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2. That if that decree had the effect to deprive the appellant ab initio of any right in the bill, then he could not competently demand the expenses of any part of the proceedings adopted by him in order to enforce that right.The House of Lords found, “That the Court of Session ought to have applied the judgment of this House in the terms thereof; and as by that judgment the interlocutor of the 16th of January 1812 was, with other interlocutors, reversed, the appellant, upon the cause being remitted to the Court of Session according to the said judgment, was entitled to a repetition of the costs paid by him in pursuance of that interlocutor. It is therefore ordered and adjudged, that the interlocutors complained of in the present appeal be reversed; and it is further ordered, that the cause be remitted back to the Court of Session, to proceed therein according to the judgment of this House pronounced on the 4th of July 1815.” *

Footnote

* See Lord Gifford's Speech, p. 365.Solicitors: J. Duthie— Fraser, —Solicitors.

(Ap. Ca. No. 60.)