Fowler v Brown
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1916 |
| Docket Number | No. 59. |
| Date | 07 March 1916 |
| Court | Court of Session |
Lord Hunter, Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Guthrie.
CompensationCompetent and omittedSuspension of charge on decree for expensesCompensation not pleaded till after decree pronouncedAct 1592, cap. 143.
A creditor for 1900 presented a petition for appointment of a judicial factor on her debtor's estate. The petition was dismissed, with 45 of expenses. The creditor, being charged for payment of these expenses, sought to suspend the charge, pleading the debt due to her as compensation. The charger, founding on the Act 1592, cap. 143, maintained that the plea of compensation was incompetent, seeing that it had not been pleaded before the decree for expenses was pronounced.
Held that the plea was competent, and suspension granted.
Fleeming v. LoveUNK, (1839) 1 D. 1097, discussed and followed.
On 5th May 1915 Miss Mary Fowler, Mount Clare, Rothesay, brought an action against James Campbell Brown, house factor, Glasgow, for suspension of a charge for 45, 13s. 6d.
The following narrative of the facts is taken from the opinion of the Lord Ordinary:
Miss Fowler, the complainer in this suspension, seeks to suspend a charge at the instance of Mr J. C. Brown as assignee of Mr John Fowler, brother of the complainer, for payment of sums of 44, 4s. 6d. and 1, 9s.
In 1869 William Fowler, brother of the complainer and of Mr John Fowler, conveyed to the said John Fowler his whole estates heritable and moveable, under burden of certain debts, annuities, and conditions mentioned in the disposition. Among the annuities was one of 150 payable to the complainer during her lifetime, beginning at the term of Whitsunday 1870 for the half year succeeding and thereafter half-yearly.
The annuity payable to the complainer appears to have fallen early into arrear. In 1892 she raised an action against her brother for payment of the amount she claimed as due to her. This action was settled by John Fowler granting a bond and disposition in security over his heritable property for payment of 2000 and interest at 21/2 per cent per annum, the principal sum being payable at Whitsunday 1907. There still remains due to the complainer 1935 of the principal sum. The annuity, which was payable independently of the bond, has fallen further into arrear. The respondent admits that payment has not recently been made of this annuity, as a heritable creditor has taken possession of the heritable property which constituted the main assets conveyed by William Fowler to his brother John Fowler. It is explained that this heritable creditor is the respondent who manages Mr John Fowler's heritable properties.
In 1913 the complainer presented a petition to the Junior Lord Ordinary to have a factor appointed upon John Fowler's heritable properties. Answers were lodged in the name of John Fowler. The prayer of the petition was refused by the Lord Ordinary and the complainer was found liable to John Fowler in the expenses incurred by him in connexion with the application. These expenses were taxed at the sum of 44, 4s. 6d., the dues of extract being 1, 9s.
By assignation dated 24th February, and intimated to the complainer 26th February, 1915 the said John Fowler assigned these sums to the respondent, who, after receiving liberty to proceed with diligence, charged the complainer on 29th April 1915 to make payment thereof.
The complainer pleaded, inter alia;1. The complainer is entitled to have the said charge suspended in respect that (1) the cedent John Fowler was and is liable to her in liquid sums of far larger amount than the sums assigned by him to the respondent; (2) there was concursus debiti et crediti between the complainer and the said cedent prior to the assignation founded on by the respondent; (3) the respondent, as assignee of the said John Fowler, is liable to all pleas competent against his author when the assignation was made; (4) the complainer is not due any sum to the respondent.
The respondent pleaded, inter alia;4. The complainer is barred by the exception of competent and omitted from now pleading compensation in the present proceedings.*
On 13th November 1915 the Lord Ordinary (Hunter) sustained the first plea in law for the complainer, and suspended the charge.
The respondent reclaimed, and the case was heard before the Second Division on 25th February and 1st March 1916.
Argued for the reclaimer:The plea of compensation was not, in the circumstances of the case, open to the complainer, and it should have been repelled by the Lord Ordinary. Prior to 1592 the plea had no place in the law of Scotland. It was introduced into the law by the Act 1592, cap. 143, and could accordingly only be pleaded in circumstances permitted by that statute. The statutory origin of the plea, and its consequently limited scope, were both clearly recognised in the institutional writers,1 the only exception being found in a passage in Bell's Commentaries2 where the author seemed to doubt whether there ever was a period in the law of Scotland in which the doctrine, founded as it is on the Roman law, was not existent. But the Act of 1592 contained definite limitations; not only had the debt to be liquid, but the plea had to be stated before decree, and could not be stated afterwards in a suspension of the decree. This accordingly was fatal to the complainer, as she had failed to plead compensation before the decree for expenses had been pronounced. That compensation must be pleaded before decree had been recognised in numerous decisions,3 and not only must it be pleaded, but the plea must also be
sustained.1 In certain respects, it was true, there had been some relaxation, or apparent relaxation, of the statute. Thus the rule that the debt must be liquid had been relaxed in the case of bankruptcy, but the principle there involved was rather the common law principle of retention than the statutory rule of compensation.2 Apparently, too, a certain amount of favour had been shown to persons abroad against whom decrees in absence had been obtained3; but in the present case there was nothing to prevent the plea being taken at the time of decree, and the...
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Examining “Equitable” Retention
...1.18.6) as does Hume (Lectures (n 1) 28). However, Bell asserts otherwise (Comm II, 126). See Lord Salvesen's comments in Fowler v Brown 1916 SC 597 at Compensation operates where claims are liquid1515A liquid debt is a debt which is presently due and payable. As such, the sum due must be a......