James Cleland, residing near Glasgow v. Mrs. Mary Fleming, Executrix of the late William Weir, and John Fleming her husband [1849] UKHL 6_Bell_402

UKHL
James Cleland, residing near Glasgow v. Mrs. Mary Fleming, Executrix of the late William Weir, and John Fleming her husband
[1849] UKHL 6_Bell_402
Where a party has not complained of a verdict in the manner allowed by the statute, in so far as regards the facts found by it, he cannot in an appeal of the interlocutor applying the verdict complain of the verdict as not being an answer to the questions raised by the issue.In the year 1829, Weir procured probate of a will executed by Williamson in the year 1816, whereby he was appointed executor, and he entered into possession of and administered the estate under this title.In consequence of proceedings adopted by third parties for setting aside this will, Weir, through Thornton his solicitor at Scarborough, made inquiries of the solicitors of the deceased, and he was furnished in September, 1831, with the heads of a will which had been prepared by Williamson in 1821.In the month of March, 1832, the Appellant became aware of the existence of these heads of a will, and immediately applied to the Ecclesiastical Courts for recal of the probate which had been granted to Weir. In November, 1833, the Appellant succeeded in this application by obtaining decree, setting up the heads of a will as Williamson's last will and testament.

In October, 1833, Weir brought an action of

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The actions of multiplepoinding and of count and reckoning were conjoined. Before ordering any accounts to be taken, the Court directed the following issue to be tried by a jury.
“It being admitted that on the 8th day of July, 1816, the late Mrs. Williamson, Scarborough, then spouse of Richard Williamson, of Scarborough, executed a testamentary deed, by which she appointed the original defender, William Weir, and another, her executors; and that on the 4th August, 1821, she executed a last will and testament by which the pursuer, James Cleland, was declared to be her sole executor as to her real and personal property.
Whether the original defender, William Weir, knowing or believing the existence of the will and testament last mentioned, by himself or by another or others wrongfully took, or from January, 1829, to 24th May, 1834, or during any part of the said period, wrongfully retained possession of all or any part of the property or effects of the said Mrs. Williamson, or wrongfully excluded the pursuer from the possession of the same?”

On the 6th of August, 1847, the jury returned the following verdict:—

to 19th September, 1831, find for the defenders; but from September, 1831, when direct information was communicated by Mr. Thornton to Mr. Wallace of the fact that he had possession of a deed which rendered Mr. Cleland sole executor, forward to March, 1832, find that Mr. Weir acted blameably in not communicating such information to Mr. Cleland, but, whether in the defender's opposition to the pursuer obtaining probate on the heads of appointment in the Court of England, after the pursuer instituted his suit in March, 1832, or in raising the Multiplepoinding in this Court after the pursuer obtained the judgment of the English Court in 1833, revoking probate of the will of 1816, the defender is to be held as wrongfully retaining possession of the property of Mrs. Williamson, or wrongfully excluded the pursuer from possession of the same by such proceedings, the jury, these being wholly or mainly questions of law, cannot say, and leave to the Court to decide.”

“In regard to the period from the demise of Mrs. Williamson

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Thereafter notice was given by each of the parties of a motion to apply the judgment in favour of himself, and upon the coming on of these motions, the Court on the 11th of March, 1848, pronounced the following interlocutor:—executor forward to March, 1832, Mr. Weir acted blameably in not communicating such information to Mr. Cleland, and remit to Mr. Donald Lindsay, Accountant, to proceed with the accounting on the principle of the above findings. Find neither party entitled to the expense of the first trial, but find the defenders entitled to the expense of the second trial, and the expense of the motion for applying the verdict, allow an account of the said expenses to be lodged, and remit to the auditor to tax the same, and to report. Find neither party entitled to the expense of this day's discussion.”
“Having heard counsel for the parties on the motions to apply the verdict by the jury in this cause, and also on the points reserved for the consideration of the Court, enter up the verdict for the defenders, and find that the late William Weir did not by himself, or another, or others, wrongfully take, or from January, 1829, to the 24th day of May, 1834, or during any part of the said period wrongfully retain, possession of all or any part of the property or effects of the deceased Mrs. Williamson, or wrongfully excluded the pursuer from the possession of the same. But find, in terms of the said verdict, that from September, 1831, when direct information was communicated by Mr. Thornton to Mr. Wallace of the fact that he had possession of a deed which rendered Mr. Cleland sole

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The appeal was against this interlocutor.Mr. Wortley and Mr. Anderson for the Appellant.—The verdict returned by the jury does not answer the questions put to them by the issue. The question by the issue was whether Weir wrongfully took, or from January 1829, to 24th May, 1834, or during any part of that period, wrongfully retained possession of Williamson's estate. The verdict divides the time into three periods; first, from the death of Williamson to the 19th September, 1831; second, from September, 1831, to March, 1832; third from March, 1832, until the proceedings in the conjoined action. With regard to the first of these periods, the verdict answers the question put by the issue as it finds generally for the Respondents, and if this finding could be separated from the rest of the verdict, it would be unobjectionable; but this cannot be done, the whole verdict must stand or fall together.With regard to the second period, from September, 1831, to March, 1832, the verdict does not return any answer to the issue: the question put was as to wrongful taking or retaining possession of property, but the answer is in regard to blameable non-communication of information. And as to the third period, the jury decline in terms to give any answer, and leave it to the Court as matter of law.

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The verdict, therefore, is not an answer to the issue, unless indeed the word Si “blameable” is to be read as synonymous with “wrongful”, for which there is no authority. And if that were so, the Court was bound by its interlocutor applying the verdict to give that effect to it But the interlocutor does the reverse, for it finds that from January, 1829, to May, 1834, there was no wrongful taking or exclusion of possession, thereby assuming that “blameable” was not equivalent to “wrongful,” and declaring that there had not been wrongful conduct, without any answer from the jury as to whether there had or not.[ Lord Chancellor .—How will negativing any wrong affect the account directed to be taken?It will deprive the Appellant of his right to the mesne profits.Lord Chancellor .—What should the Court have done then?It ought to have arrested judgment and ordered a new trial.Lord Chancellor .—If the finding of the verdict was not proper, it is the Appellants, fault that he did not bring it before the Court in the way allowed by the statute; the verdict is conclusive of the facts found by it. The only question is what the Court should have done upon the facts found.]By the statute the verdict, if not complained of, no doubt is conclusive, but it is conclusive only as to those facts which are put in issue. Here the facts found are beside the issue,—there was no question as to communication of information, but as to possession or retention of property. Whatever might be the effect of blameable non-communication of information in the circumstances of the case, and it is not very obvious what that would be, the Court was not warranted in the inference of a conclusion which was directly put to the jury as a question of fact, viz., whether there had not been wrongful retention of property, without any answer having been returned by the jury to that question. In this respect, admitting that the Appellant is too late to complain of the verdict, he is within the 9th sect, of the 55 George III., cap. 42, and entitled to complain of the

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[ Lord Campbell .—The verdict finds facts—whether these facts were wrongful was a question of law, and it was for the Court to say whether they were so.Lord Chancellor .—It is open to the Appellant to argue that the Court should have found the facts to be wrongful.]From the time that he became acquainted with the existence of the will of 1821, the Respondent was deprived of all plea of bonâ fides bonâ fides , in his possession, Woolley v. Clark , 5 Bar & Ald. 744—at all events he was in mala fide to resist probate of that will, and still more so in bringing the action of multiple-poinding after probate had been granted, and if this had been found, he must in the accounting have been treated as one in wrongful possession, and bound to account accordingly.Mr. Rolt and Mr. Adolphus for the Respondents.Lord Chancellor .—My Lords, this case undoubtedly has been conducted below in a way which one has some reason to lament, from the uncertainty which has been left upon the facts, notwithstanding all the care that has been taken to have them properly ascertained by means of a jury.The claim being against the Defender, Mr. Weir, and he being charged by a party who has a right to administer the estate under a will ultimately established to be the last will, it was thought right to direct an issue, for the purpose of ascertaining the position in which the Defender stood, and of enabling the Court to decide in what way he was to be charged with the property which he had received during the time he acted as executor.After stating that it was admitted that the late Mrs. Williamson executed a will of the 8th of July, 1816, which was the first will, and that on the 4th of August, 1821, she executed

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Under that issue it was competent of course for the Pursuer to make out the best case he could, for the purpose of shewing the wrongful possession and the wrongful retainer of the property. The case having been tried, the jury find certain facts, they divide the period and they negative the wrongful possession at an earlier period. They say in regard to the period from the demise of Mrs. Williamson to September, 1831, they find for the Defender, negativing therefore the wrong imputed to him, and that is not in dispute, “But from September, 1831, when direct information was communicated by Mr. Thornton to Mr. Wallace of the fact that he had possession of a deed which rendered Mr. Cleland sole executor, forward to March, 1832, find that Mr. Weir acted blameably in not communicating such information to Mr. Cleland, but whether in the Defender's opposition to the Pursuer's obtaining probate on the heads of appointment in the Court of England after the Pursuer instituted his suit in March, 1832, or in raising the multiplepoinding in this Court after the Pursuer obtained the judgment of the English Court in 1833, revoking probate of the will of 1816, the Defender is to be held as wrongfully retaining possession of the property of Mrs. Williamson, or wrongfully excluded the Pursuer from possession of the same by such proceedings, the jury, these being wholly or mainly questions of law, cannot say, and leave to the Court to decide.” Then there is a note which may not be considered

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That verdict undoubtedly is not very happily expressed. But still I do not think there is any doubt as to what the meaning of the jury was, or as to the true construction to be put upon their verdict. As to the first period they find for the Defender. They negative therefore the wrong. As to the second, they find certain facts, and although they do not find them as a substantive finding, I think there is no doubt that the Court dealing with this verdict were entitled to consider this as a fact,—that in September, 1831, direct information was communicated to Mr. Thornton, and by Mr. Thornton to Mr. Wallace, of the fact that he had possession of a deed which rendered Mr. Cleland sole executor, and that Mr. Weir was blameable for not communicating such information.The fact then as found by the jury is, that in September, 1831, Mr. Weir had information of the existence of a subsequent deed, and that he did not communicate that information to Mr. Cleland, Mr. Cleland being appointed executor under the second will. Those are the only facts which they find. They do not find any dealing with the property during that period, but they find the simple fact of information being communicated to Mr. Weir, and not being communicated by him to Mr. Cleland. Then the other facts which they also rather assume than state, and about which there can be no doubt, are, that the Defender resists the probate claimed by Mr. Cleland, and that he institutes a suit of multiple-poinding. Those are the two other facts.Before I consider how the Court dealt with that verdict,

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Now the first point raised by the Appellant is, that this verdict, although not capable of being impeached or set aside,

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I find that some cases were referred to as authorities to shew that it was competent to the Pursuer to adopt this course. The case of Campbell v. Campbell was referred to. Now certainly in reading the report of Campbell v. Campbell , to the

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What is the judgment of this House in disposing of that case? The case came I think before Lord Lyndhurst, who was Chancellor at the time the second appeal came before the House. He says, “Under these circumstances the finding of the jury is one that cannot now be disturbed, inasmuch as an application was made to the Court of Session for a new trial, and the Court of Session refused a new trial, and against that interlocutor refusing a new trial no appeal can be presented to your Lordships' House. The present appeal is against the interlocutor giving effect to the verdict of the jury, that is to

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How that can be an authority in favor of the party here appealing, I cannot at all see; but that it is very much in favor of the Respondents is perfectly obvious; because there also, as here, the verdict of the jury was conclusive—it was final; and the party coming to question the interlocutor applying that verdict, was bound to take the case fettered with that verdict, and to shew that the interlocutor was wrong, assuming that the verdict was right.This verdict came before the Court with those facts found upon the face of it, and no others; and the Court apparently dealt with the case upon those simple facts. The Court says, With regard to the first period there is no question. With regard to the second period what do they find? I am not now referring to the language, but to the conclusion to which the interlocutor shews they came. They enter a verdict for the Defender, and they find “that the late William Weir did not, by himself, or another, or others, wrongfully take, or from January, 1829, to the 24th day of May, 1834, or during any

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The account was at all events to go on. The party had been in receipt and administration of the estate, under the authority of a probate, which turned out not to have been a proper probate, inasmuch as there was another will at the time existing, although it was not known to exist at the time probate was granted, which showed that another person was the party to whom probate should have been granted, if that second will had been known at the time. They say, therefore, account you must, and the question we have to decide is, whether, inasmuch as you had notice in 1831, and did not communicate that notice to Mr. Weir, you are to be dealt with as a wrongful intromitter during that period. What the effect of that wrongful intromission would have been is not material in the view that I take of this case; because, being of opinion that there was nothing upon the face of the verdict which called upon the Court to deal with Mr. Weir, as improperly in possession during the interval, that question does not arise. The simple fact which is found is, that he knew of the existence of the deed, and did not communicate it. He knew it in September, and at the end of March following the suit was instituted for the probate. What do we find to have been done in the mean time? No facts are found. The simple fact found is, that he had

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Now, my Lords, the propriety of communicating the fact, in a moral point of view, one can hardly dispute, but the question is, whether such transactions took place as to make it legally wrong, so as to affect him in the mode in which he is to account for this property. A man may hear of a fact, he may have good reason for doubting it, he may properly take time to enquire into it, and a variety of circumstances may exist which are not found here at all, and are not facts upon which the Court can proceed, for the Court knows nothing at all about them; but the Court has the simple fact of notice being communicated to him, and by him not communicated, and I think that to do what the Appellant now asks us to do, would be going a great deal farther than was even done in the case referred to of Woolley v. Clark , which was a case of English law and not of Scotch law, but there there was a dealing with the property. I cannot, however, pass by that case altogether without asking myself what would be the result of carrying that decision out, because there we find that there being no knowledge of any other will at the time, a party had improperly obtained probate of a will, by which he was appointed an executor; and he having administered the estate to a certain extent, another will was afterwards produced, and he was made to account; that is to say, there was recovered in an action, at the suit of the executor of the second will, not only property which the party had to be administered, but all the property which had come to his hands, although he had administered the estate, and was then a creditor of the estate to the extent to which he had administered. He might have been at the time

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Now, my Lords, there is no question here as to accounting. Cases have been referred to where the question has arisen, whether a party is to account for profits, his conduct being in malâ fide in malâ fide , or whether his conduct was in bonâ fide in bonâ fide , in which case he could not be called upon to account at all. I cannot see the application of those cases to the present, because that the executor, Mr. Weir, is liable to account for the estate cannot be disputed, and in accounting I suppose he ought to have his discharge for what he has paid. But according to the case

Footnote

* The executor was aware of the first will at the time he sold the property. See 5 Bar. & Ald. , 744.

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The result, therefore, will be, that I advise your Lordships to affirm the interlocutor appealed from with costs.Lord Brougham .—My Lords, I entirely agree with my noble and learned friend. I consider that what he has stated in the last sentence of his argument, is a perfectly sound and just view of this case, and I should not have done more than express my entire concurrence with the result at which he has arrived, and at which I have myself also arrived, had it not been that mention has been made of the case of Woolley v. Clark .

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Lord Campbell .—My Lords, I have very little to add to what has fallen from my noble and learned friends; and really I think this case is free from all difficulty.The first point which has been made at the bar respecting the interlocutor being contrary to the law, because there was not a majority of the Court in its favour, is clearly unsustainable, for the interlocutor is in the regular form, “Edinburgh,” such a day, and such and such a judgment given. We cannot upon the short-hand writer's notes of the reasons which were given, be asked to say whether, upon those reasons, the learned Judges must be supposed to have voted on the one side or on the other. We cannot go into such a speculation. The record states that there was that judgment of the Court, and by that record we must be bound.With respect to the objection to the verdict that it does not exhaust the terms of the issue, and that, therefore, the judgment should be arrested and followed by a venire de novo , I think that to allow that objection would be expressly defeating the Act of Parliament. The verdict has been given, and it was not objected to within the proper time; therefore it stands, and the facts there found must be considered as having been established.The only question which has been considered as debateable (and it has been debated very ably on the part of the counsel for the Appellant,) is whether, taking the facts found by the verdict of the jury, they establish in point of law that Mr. Weir was wrongfully in possession of this property. That is the question, and the only question. For the reasons which have been given by my noble and learned friend, the Lord Chancellor, it seems to me to be quite clear that these facts are not by the law of Scotland sufficient to shew that Mr. Weir was wrongfully in possession. It is quite clear that the onus is upon the Appellants to shew that the facts which are found by the jury would, according to the law of Scotland, make Mr. Weir, from the date

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[ Mr.S. Worthy .—With respect to the costs, will your Lordships allow me to make one observation? It is quite clear that one of the Judges must have withdrawn his vote in order to produce a majority.Mr. Rolt .—No, that is not the case.Mr. S. Wortley .—In the previous case, under those circumstances, your Lordships did not give costs. In the case of Maule v. Moncrieffe , the language of the Lord Chancellor was this, “The Court was equally divided, and they had two courses to take, either to retain that equal division and to send for the consulted Judges, which they did not do, or to adopt the course which they did adopt, and which brings the case here, the Lord Justice Clerk saying, “I withdraw my vote as a judge, and leave you to be two to one in favour of the

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Lord Campbell .—That is not at all clear.Mr. S. Wortley .—In that case it only appeared from the opinions of the Judges that that was the course taken.Lord Brougham .—We cannot go on speculation.

Lord Chancellor .—The common rule must be followed.]

Ordered and Adjudged, That the Petition and Appeal be dismissed this House, and that the interlocutors therein complained of be affirmed, with costs.Solicitors: Dunn and Dobie,— Tatham, Upton, and Co., Agents.