Scottish Court of Session Decisions

The estates of the defender Mr Wright were sequestrated on March 19, 1870, and the pursuer was appointed trustee in the sequestration. The bankrupt did not succeed in obtaining personal protection, and in June of the same year he raised a process of cessio bonorum against his creditors, in which the Court found him entitled to the benefit of cessio on his assigning to the trustee in the sequestration “one third of his income.” The assignation was accordingly made and intimated to Messrs Blyth & Cunningham, the bankrupt's employers. At the date of his sequestration, the bankrupt, who was a relative of one of the partners of the firm, was employed by Messrs Blyth & Cunningham as cashier and book-keeper at a salary of £200 a-year. In April, after the sequestration but before the cessio, Mr Wright was informed by the firm that they proposed to reduce his salary to a sum more in conformity with the amount of his services to them, and that his salary for the future would be 30s. a week, anything further which he received being a gratuity. They continued to pay him the sum of £200. From the date of the cessio down to October 15, 1872, Mr Wright continued to pay to the trustee the sum of 10s. per week, being one third of 30s. per week, which was regularly discharged by the trustee. At the latter date the trustee raised a question as to the amount which he was entitled to receive, and the payments were for the time suspended. In March 1873 the trustee raised an action of count, reckoning, and payment against Mr Wright, and also against Messrs Blyth & Cunningham, concluding for the “amount of the balance of the one-third part of the whole annual income of the defender Robert Pringle Wright, as cashier and book-keeper.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 25 th June 1873.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof—Finds that, according to the true nature of the present action, and of the pursuer's allegations in support of it, he is only entitled to a third of the salary payable by the defenders Messrs Blyth & Cunningham to the other defender, Mr Wright, as their cashier and book-keeper, subsequent to the 18th of June 1870 till the date of citation, being 12th March 1873: Finds it proved that said salary amounted only to £1, 10s. per week: Finds it admitted in the record (Condescendence 6) by the pursuer that one-third of said salary has been duly accounted for and paid to him down till the 15th October last, 1872: Finds therefore that the only further claim the pursuer has is to the defender's said salary at the rate of £1, 10s. per week from the said 15th October last, and that to that extent the defenders have been always ready and willing, as they still are, to pay and satisfy the pursuer's claim: With these findings, and under a reservation of the pursuer's claims on the principles of the present interlocutor, dismisses the action as having been unnecessarily brought, and decerns: Finds the defenders entitled to expenses; allows accounts thereof to be lodged, and remits them when lodged to the auditor to tax and report.

Note.—The Lord Ordinary holds the proof to be quite clear to the effect that the defender Mr Wright neither had nor has for the period in question any claim against the other defenders for salary as their cashier and book-keeper, except at the rate of £1, 10s. per week; and he thinks it is equally clear in the proof that no action was necessary by the pursuer for a third of this salary, as it was paid to him down to the 15th of October last, and as there was no refusal to account for it to him at the same rate subsequently.

“But at the debate the pursuer's counsel maintained that he was not only entitled to a third of Mr Wright's salary payable to him by Messrs Blyth & Cunningham, as their cashier and bookkeeper, but also to one-third of an additional allowance, which it appears from the proof was made by these gentlemen to Mr Wright as a gratuitous act of kindness and benevolence merely, and not as salary at all, and for payment of which they are not now, and had not been for the period libelled, under any obligation whatever. The

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Lord Ordinary cannot give effect to this view, which he thinks is untenable under the action as laid, whatever might have been its merits if raised in an action laid so as to comprehend it. It will be observed that not only in the formal part of the summons in the present action, but also throughout his condescendence, the pursuer claims merely the salary due to Mr Wright ‘as cashier and bookkeeper’ to the other defenders. The Lord Ordinary cannot therefore see how he could competently find the pursuers entitled to a third of anything else than such salary under the action as so laid.

The Lord Ordinary has only further to explain that he gave the pursuer an opportunity of amending his summons and record upon showing that it would be competent for him to do so under the Act of 1868; but this opportunity he stated he had no desire to avail himself of, probably because, on examining the statute, he found that no such amendment as would be necessary to serve his purpose could be competently made.

In regard to the matter of expenses, the Lord Ordinary also gave the pursuer an opportunity of being heard, but he declined saying anything on the subject. On the other hand, it was stated for the defenders that they had been always, and were now, quite ready to pay to the pursuer the sum due by them since 15th October last, whenever it was asked; and no dispute having been raised on this point by the pursuer, the Lord Ordinary felt he had no alternative but to dismiss the action, and find the defenders entitled to expenses.”

The pursuer reclaimed, and pleaded—“(1) The pursuer being entitled, under the said assignation by the defender the said Robert Pringle Wright, to one-third part of the whole annual income of the said defender, he is bound to hold count and reckoning with the pursuer, as concluded for. (2) The said assignation having been duly intimated to the defenders, the said Edward Lawrence Ireland Blyth and George Cunningham, or the firm of which they are individual partners, they are bound to hold count and reckoning with the pursuer for one-third of the whole income of the said Robert Pringle Wright, as cashier and bookkeeper foresaid. (3) The pursuer is entitled to decree against the defenders for the balance of one-third of the income of the said Robert Pringle Wright, as cashier and book-keeper foresaid, as the same shall be ascertained in the said accounting, as concluded for. (4) In case the defenders shall fail to hold count and reckoning with the pursuer as concluded for, he is entitled to decree in terms of the alternative conclusion of the summons for payment. (5) Generally, the pursuer is entitled to decree in terms of one or other of the conclusions of the summons, with expenses.”

Argued for him—The cessio was granted on the footing that the bankrupt should assign one-third of his income. Nothing was said about salary, and admittedly the bankrupt received £200 a-year from Messrs Blyth & Cunningham on some footing. The fact that part of it was gratuitous and precarious did not make it any the less income, and as such he was bound to account for it. The discharges by the trustee only covered the amount of the actual payments, and did not exclude the trustee from recovering the balance.

The defender Wright pleaded—“(1) The defender having regularly accounted to the pursuer for one-third of his income in terms of the assignation, and being still willing to do so, the present action is unnecessary, and should be dismissed. (2) The defender is not bound to count and reckon with the pursuer for sums received by him by way of alimentary donation.”

Argued for him—That he had no income except the thirty shillings a-week, for one-third of which he had regularly accounted, and was still willing to account. Anything else which he got was solely through the favour of Messrs Blyth & Cunningham, and might be discontinued at any moment. Income is that which comes to a man of right—the profits of his labour or his capital.

The defenders Blyth & Cunningham pleaded—“(1) The assignation intimated to the defenders in no way binds them to account to the pursuer for any portion of the salary payable by them to their book-keeper, and the pursuer has no title to sue them therefor. (2) On a sound construction of the assignation, it cannot be held to convey sums allowed by the defenders to Wright for alimentary purposes, which could be given or withheld in the option of the defenders. (3) The defender Wright having fully accounted to the pursuer for the one-third of the salary payable to him, and the defenders not being indebted and resting-owing in the sum concluded for, or in any sum, the action is unnecessary. (4) In the circumstances condescended on, the defenders are entitled to absolvitor, with expenses.”

Argued for them—They could not be called to account for sums which they had already paid, especially when there was no legal obligation to pay them in the first instance. The only question which could be asked of them was, whether they held funds of Wright's which could be carried by his assignation.

At advising—