Pagan & Osborne v Haig

JurisdictionScotland
Judgment Date23 February 1910
Date23 February 1910
Docket NumberNo. 53.
CourtCourt of Session
Court of Session
2d Division

Lord Mackenzie, Lord Dundas, Lord Ardwall, Lord Justice-Clerk.

No. 53.
Pagan & Osborne
and
Haig.

Jurisdiction—Court of Session—Sheriff—Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), secs. 6 and 7—Action for sum not exceeding Fifty Pounds—Defender residing in England and owning heritage in Scotland.

The Sheriff Courts Act, 1907, sec. 7, enacts that all causes not exceeding £50 in value ‘competent in the Sheriff Court shall be brought and followed forth in the Sheriff Court only, and shall not be subject to review by the Court of Session.’ Sec. 6 enacts—‘Any action competent in the Sheriff Court may be brought within the jurisdiction of the Sheriff—(c) Where the defender is a person not otherwise subject to the jurisdiction of the Courts of Scotland, and … goods, debts, money, or other moveable property belonging to him have been arrested within the jurisdiction, (d) Where the defender is the owner … of heritable property within the jurisdiction, and the action relates to such property.’

An action was brought in the Court of Session against the owner of heritage in Fifeshire, who resided in England and was not personally cited, for payment of an alleged debt of £25 not relating to heritage.

The defender pleaded that the action in the Court of Session was excluded by sec. 7 of the Sheriff Courts Act, 1907.

Held that the jurisdiction of the Court of Session was not excluded by sec. 7, as that section only applied to cases competent in the Sheriff Court, and this case was not competent in the Sheriff Court, because it was not an action relating to heritage, and the defender was a foreigner.

Observed that an arrestment ad fundandam jurisdictionem would not have brought the defender within the Sheriff's jurisdiction under sec. 6, as the defender as owner of Scottish heritage was subject to the jurisdiction of the Courts of Scotland.

Title to sue—Unincorporated Society—Action at instance of Mandataries.

‘P. & O., honorary secretaries and treasurers for the Fife Fox Hounds, as mandataries of the shareholders and subscribers to said Fife Foxhounds, specially authorised by, and acting on behalf of, the said shareholders and subscribers, with the concurrence of S. and E., masters of the said hounds for the seasons 1906–1907 and 1907–1908 respectively, for their interest,’ sued H. for a sum of £25 alleged to be due as subscriptions to the hunt during the years 1906–1908. The pursuers averred that they had been authorised to raise the action by an annual meeting of shareholders and subscribers.

The defender pleaded that the pursuers had no title or interest to sue.

The Court allowed a proof before answer.

Observed that it would have been more regular if the instance had been similar to that adopted in Renton Football Club v. M'DowallSC, March 3, 1891, 18 R. 670.

This action was brought in the Court of Session in name of ‘Pagan & Osborne, writers, 12 St Catherine Street, Cupar-Fife, honorary secretaries and treasurers for the Fife Fox Hounds, as mandataries of the shareholders and subscribers to said Fife Fox Hounds, specially authorised by, and acting on behalf of, the said shareholders and subscribers, with the concurrence of Colonel Alexander Sprot of Stravithie, in the county of Fife, and Thomas H Erskine, Esquire, Grangemuir, in the county of Fife, masters of the said hounds for the seasons 1906–1907 and 1907–1908 respectively, for their interest,’ against John Haig, Lovel Hill, Windsor Forest, Berkshire, heritable proprietor of the subjects consisting of land in his own possession, house tenanted by James Berry, clerk, and house tenanted by Robert N Anderson, grain buyer, all situated at Windygates, in the parish of Markinch and county of Fife,’ for payment of a sum of £10, with interest from 1st September 1906, and a sum of £15, with interest from 1st September 1907.

The pursuers averred:—(Cond. 1) ‘The pursuers, who are writers in Cupar-Fife, are the honorary secretaries and treasurers for the shareholders and subscribers of the Fife Fox Hounds, and have been specially authorised as their mandataries by said shareholders and subscribers to act for and on their behalf in the present action. Colonel A. Sprot was master of the Fife Fox Hounds during the season 1906–7, and Mr T. H. Erskine was master for the season 1907–8, and as such masters have the beneficial interest in the subscriptions for the seasons above mentioned during which they were the respective masters. The said Colonel Sprot and the said Mr Erskine concur in the present action for their said interest. The defender resides at Lovel Hill, Windsor Forest, Berkshire, but he owns heritable property consisting of land in his own possession, house tenanted by James Berry, clerk, and house tenanted by Robert N. Anderson, grain buyer, all situated at Windygates, in the parish of Markinch in the county of Fife, and is thus subject to the jurisdiction of the Court of Session.’ (Cond. 2) ‘The Fife Fox Hounds are owned by certain shareholders. Under an arrangement, made in July 1864, the said hounds were put at the disposal of a body of subscribers, and the hounds have since been as a pack maintained and the expense of hunting paid out of annual subscriptions raised for the purpose.’ (Cond. 3) ‘At the meeting of shareholders and subscribers of the pack held on 4th April 1865, it was resolved that subscriptions be due and payable on 1st September in each year, and that any subscriber to the hounds desirous of withdrawing must give notice on or before the 1st January following, else he will be liable for his subscription for the following season. This rule is binding on the subscribers. Since 1865 the pack has been under the management of successive masters, to whom the subscriptions collected by the pursuers and their predecessors in office have been handed over, the master for the season, in reliance on the observance of said rule by the subscribers, being satisfied to take the responsibility for the maintenance of the pack in the expectation and on the faith of receiving the subscriptions to be paid upon the basis of the list of subscribers made up as at 1st January in each year for the succeeding season.’ (Cond. 4( ‘The said subscriptions have been annually collected by the honorary secretaries and treasurers as at 1st September, circulars bearing that date being each year sent out to all the subscribers having appended thereto a copy of the rule above-mentioned as to the date of payment and the member's liability to pay his subscription for the following year, failing notice of withdrawal by 1st January. Accounts have been submitted to a meeting of shareholders and subscribers held each year in April, and the annual accounts have been for many years printed and circulated among the subscribers, each subscriber receiving a copy. Appended to the accounts there is a list of subscriptions received for the season to which the amount applies, and also a list of any voluntary donations which may have been received over and above subscriptions.’ (Cond. 5) ‘The defender, who then resided at Cameron Park, Windygates, Fifeshire, began to hunt with and became a subscriber to the Fife Fox Hounds in season 1902–1903, his subscription being £15, and in the list of subscriptions appended to the accounts for that season his name appeared as having paid said sum. A circular, with copy of said rule appended, giving notice to pay his subscription, has been annually sent to the defender, and he paid same down to and including that for the season 1905–1906. The whole of said payments were made by the defender to the pursuers as secretaries and treasurers to the hunt. Copies of the accounts for each year were also sent to him. These accounts contained, inter alia, a list of subscribers and the amount of their subscriptions. Said accounts also contained a separate list of donations and the names of the donors. The defender's name is entered in the list of subscribers in the whole of these for a subscription of £15, and no objection thereto was ever taken by the defender. In or about the month of September 1906 the usual circular was sent to the defender with reference to his subscription for the year 1906–1907. On 5th March 1907 the defender sent a cheque for £5 as his subscription for the then current season 1906–1907, which the secretaries acknowledged, pointing out that he was liable for his full subscription for that season, in respect that he did not give notice of withdrawal within the time specified, and that he was also liable for the following season, in respect that he did not give notice of withdrawal prior to 1st January 1907. The secretaries again wrote the defender on the 26th of March 1907, asking for payment of the balance of his subscription (£10), but he did not reply to either of these letters. In September 1907 the usual circular was sent to the defender, on which was noted the arrear of subscription for the...

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4 cases
  • Adams and Others v Lord Advocate
    • United Kingdom
    • Court of Session (Outer House)
    • 31 July 2002
    ...Door Counselling Ltd and Dublin Well Woman Centre Ltd v IrelandHRCHRC (1992) 14 EHRR 131, (1992) 15 EHRR 244 Pagan & Osborne v HaigENR 1910 SC 341 Pinnacle Meat Processors Co v United KingdomHRC (1998) 27 EHRR CD 217 Pretty v United Kingdom Appln 2346/02 (29 April 2002) Purcell v Ireland (1......
  • Trevor Adams And Others For Judicial Review Of The Protection Of Wild Mammals (scotland) Act 2002
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    • Court of Session
    • 31 July 2002
    ...or of responsible members such as office bearers, must be added: Renton Football Club v McDowall (1891) 18 R. 670; Pagan & Osborne v Haig 1910 S.C. 341 (a case relating to the Fife Fox Hounds). It is for this reason that the instance of the present petition was amended at an early stage to ......
  • Club Los Clavales Against First National Trustee Company Ltd
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    ...cannot sue or be sued alone. Generally at least some of the members must also be pursuers or defenders (Pa gan & Osborne v Haig 1910 SC 341, Lord Dundas at p 350; Stair Memorial Encyclopaedia, Associations and Clubs Reissue, paragraph 20; Scottish Law Commission Report no. 217, Unincorporat......
  • Craig & Company v Blackater
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    ...against A. F. Craig & Co. 1 Mackay's Manual of Practice, 128; Larsen v. Ireland & SonSC, (1892) 20 R. 228; Pagan & Osborne v. Haig, 1910 S. C. 341. 2 Bennett v. Inveresk Paper Co.SC, (1891) 18 R. 975, Lord M'Laren, at p. 983; Meier & Co. v. KchenmeisterSC, (1881) 8 R. 3 Story on Agency, (9t......

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