Hugh Callum v. Charles Ferrier, Trustee on the Estate of Scotch Patent Cooperage Company [1825] UKHL 1_WS_399

UKHL
Hugh Callum v. Charles Ferrier, Trustee on the Estate of Scotch Patent Cooperage Company
[1825] UKHL 1_WS_399
Held, (affirming the judgment of the Court of Session), That a person employed to cut wood under the superintendence of the manager of the employer, and who was not in actual possession of the wood, had no right of lien or retention for payment of his wages.The Scotch Patent Cooperage Company purchased the growing wood of Fairburn and elsewhere, in Ross-shire, and employed Hugh Callum and others to cut, bark, drag, and float it to Dingwall, at a certain rate per tree. The Company had a manager who superintended the work. Callum employed men, and commenced operations. After a good deal of the work had been done, and a considerable sum become due to

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together with all damage and expenses which may be awarded by the said Sheriff and his substitutes against the said John Berry and Alexander Kelly in the said process of interdict, or of whatever other sum shall ultimately be found due to him the said Hugh Callum in the said process of interdict, and that out of the proceeds of the wood, the subject thereof, when sold, in terms of the Sheriff's interlocutor of date the 24th July last,; and we consent to the registration,” &c.
“We, &c. do hereby bind and oblige ourselves, conjunctly and severally, and our heirs, executors, and successors, as cautioners and sureties, acted in the Sheriff Court books of Ross, for John Berry, trustee on the sequestrated estate of the Scotch Patent Cooperage Company, Port-Dundas, Glasgow, and Alexander Kelly, writer in Dingwall, his agent and mandatary, that they shall make payment to Hugh Callum, residing at Dalarick, or to any person or persons to whom the Sheriff-depute of Ross and Cromarty shall decern payment to be made, of the principal sum of L.493. 8s., deducting the sum of L. 141. 17s. said to be paid in part; conform to account, with affidavit, produced by the said Hugh Callum, and referred to in an application or petition for an interdict presented by him on the 3d day of June last to the said Sheriff and his substitutes, against the said John Berry and Alexander Kelly, with interest of said sum since due, till paid;

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In respect of this bond, the Sheriff recalled the interdict, and granted warrant to the respondent of “new to advertise the wood in question, and to dispose of the same by public roup to the best account.” It was alleged that the wood produced only L. 162. 16s. 2d. Before the sale, however, Callum charged on the bond. Forsyth and M'Gregor suspended. An ordinary action was also raised against the trustee, who then brought a reduction of the proceedings before the Sheriff. Berry in the meanwhile was succeeded by Ferrier. The Lord Ordinary sustained the defences in the ordinary action, and the reasons of suspension and of reduction; and the Court (20th December 1822) adhered. *Callum appealed.Appellant .—1. The parties are bound by the judicial reference and the bond of caution.2. An artificer who gets a commodity to operate upon, or to transform in any shape, has a lien for the price of his labour; and the appellant was entitled to the advantage of this privilege. When he and his workmen were originally employed, they had clearly such possession of the wood as founded a lien for remuneration of their labour. The possession required must be suited to the nature of the labour; and the appellant, in the act of cutting down the wood, and floating it to its destination, had all the possession of which the case was susceptible. He had no right of property or possession of the ground or water where the wood lay, but he had a legal possession of the wood sufficient to maintain his lien. The appellant did not, previous to the sequestration of the Cooperage Company, voluntarily quit possession of the wood. The work was stopped solely from the Company ceasing to make the advances incumbent on them. The wood was not ceded to them, but remained where

Footnote

* 2. Shaw and Dunlop, No. 99.

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Respondents. —1. There was no judicial reference, nor acquiescence in the Sheriff's judgment, but merely an obligation to pay what should be finally awarded, and no final adjustment has followed. Besides, the Sheriff's interlocutor has been reduced and set aside.2. The appellant's claim is not privileged; nor has every tradesman of necessity a lien or security over the subject of his operations for the expense of these operations. To constitute a lien there must be actual possession. Callum had not that possession. He was merely the contractor for cutting, &c.; but the Company's overseer was on the spot to superintend and pay wages. At any rate the appellant gave possession up, and abandoned the work. In these circumstances, it is in vain to assert a right of retention to the prejudice of the Company's creditors.The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutors complained of affirmed.”Appellant's Authorities .—1. Bell's Com. p. 177. 5th edit.; Stat. 54. Geo. III. c. 137. § 38. Respondent's Authorities. —2. Bell's Com. p. 158–91–95. 5th edit.Solicitors: Spottiswoode and Robertson,—Solicitors.