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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burrell v. Burrell's Trustees and Others [1916] ScotLR 590 (31 May 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0590.html Cite as: [1916] ScotLR 590, [1916] SLR 590 |
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Page: 590↓
A complainer brought a suspension of a charge upon a decree for expenses in favour of the defenders in an action in which he had been pursuer. The decree was in favour of a large number of defenders including a trust. He sought suspension on the ground that the trust, who he averred were the real defenders, the others being merely nominal, were owing him a legacy of larger amount; or, failing that, suspension of the decree so far as the trust was interested.
Held that there was no concursus debiti et crediti, and note of suspension refused.
Henry Burrell, complainer, brought against George Burrell, shipowner, and another, the trustees of the late Mrs Isabella Guthrie or Burrell, respondents, a note of suspension of a charge to make payment of £183, 12s. 8d., being the taxed amount of expenses of process in decrees of 11th March 1914 and 11th March 1915, together with £1, 15s. dues of extract.
The complainer described the charge as being at the instance of the respondents, whereas it proceeded at the instance of ( a) the said trustees, ( b) William Burrell, shipowner, Glasgow, who was one of the trustees, as an individual, and Mrs C. Mitchell or Burrell, his wife, and ( c) ten steamship companies in whose favour the decrees for expenses had gone out and who had been defenders in an action brought against them by the complainer (see 52 S.L.R. 312). The complainer however averred—“Stat. II … Explained that the respondents, who were the parties chiefly interested in the said action, assumed the entire control of the defence therein; that although defences were lodged nominally on behalf of all the defenders called, this was done on the instructions of the respondents alone; that during the whole course of the litigation they alone continued to be consulted by and gave instructions to the law-agents who conducted the defence; that no part of the expenses for which the decree has been extracted were incurred by the defenders other than the respondents, and that the latter alone are entitled to payment.” It was admitted that under the trust the complainer had been left a legacy of £2500, and had only so far received £1250.
The complainer pleaded, inter alia—“(3) In any event, the respondents being indebted and resting-owing to the complainer in a sum largely in excess of the sums charged for, the charge complained of is nimious and oppressive, and should be suspended.”
The respondents pleaded, inter alia—“(6) There being no concursus debiti et crediti compensation is inadmissible, and the note should therefore be refused.”
On 7th December 1915 the Lord Ordinary ( Hunter) repelled the reasons of suspension and found the warrants and charge orderly proceeded.
The complainer reclaimed, and argued—The legacy due by the trustees to the complainer was a liquid debt which he was entitled to set off against their claim under this decree. A proof at least should be allowed of the complainer's averments that the respondents were the real defenders in the action, and that they alone had incurred the expenses. And, in any event, the complainer was entitled to set off his claim to the legacy against whatever part of the joint-right of the defenders in the decree was, in point of fact, in the trustees— Harvey v. Muir, 1843, 5 D. 1113; Bell's Prins., sec. 52.
Argued for the respondents—The demand for a proof was an attempt by parole evidence to get into the question of indebtedness and contradict the terms of the decree. The principle of compensation did not apply where the debt to be set off was due by one of several creditors—Lindley on Partnership (8th ed.), p. 350; Bell's Comm. ii, 553. There was in such case no concursus debiti et crediti. The Court referred to Fowler v. Brown, 53 S.L.R. 416.
Page: 591↓
Accordingly in my view—on the merits of this case, and apart from the technical objections I have referred to—there is a failure here of the necessary concursus debiti et crediti, and the sixth plea-in-law for the respondents is well founded. We shall therefore refuse the note.
The Court refused the reclaiming note and adhered.
Counsel for Complainer—Solicitor-General ( Morison, K.C.)— D. Jamieson. Agents— Dove, Lockhart, & Smart, S.S.C.
Counsel for Respondents— A. O. M. Mackenzie, K.C.— C. H. Brown. Agents— Webster, Will, & Company, W.S.
