Van Uden v Burrell
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1916 |
| Docket Number | No. 41. |
| Date | 20 January 1916 |
| Court | Court of Session |
Ld. Ormidale, Lord President, Lord Skerrington, Lord Anderson.
WarAlien enemyTrading with the Enemy Acts, 1914, and relative ProclamationsAction at instance of neutral firmSole partners of neutral firm individually interested in business carried on in enemy's countryCompetency of proceeding with actionProcessSist.
In an action at the instance of a Dutch firm, carrying on business in Holland, it was admitted that the sole partners of the firm were individually interested in, though not the sole partners of, a business carried on in Germany.
Held that the pursuers were alien enemies in the sense of the Trading with the Enemy Acts, 1914, and relative Proclamations; and action sisted until after the termination of the war.
WarAlien enemyArrestmentArrestment on the dependence.
Arrestments on the dependence of an action at the instance of an alien enemy against a British subject, laid on before the outbreak of war, recalled after, and owing to, its outbreak.
On 5th December 1913, Gebruder van Uden, steamship owners in Rotterdam, brought an action in the Sheriff Court of Lanarkshire at Glasgow against Henry Burrell, shipowner there, for payment of a certain sum alleged to be due to them by the defender, representing the defender's share of the expenses of certain legal proceedings in connexion with a joint adventure in which the parties had been engaged.
The Sheriff-substitute (Fyfe) granted warrant to arrest on the dependence, in virtue of which warrant the pursuers, on 5th December 1913, used arrestments in the hands of certain creditors of the defender.
On 23rd September 1914 the defender brought an action in the same Court for the recall or restriction of these arrestments.
On 22nd June 1914 the defender brought an action in the Court of Session for reduction of an agreement upon which the pursuers founded in the petitory action in the Sheriff Court.
On 26th June and 26th November 1915 the Lord Ordinary granted warrants for the processes in the two Sheriff Court actions to be transmitted to the Court of Session ob contingentiam.
Thereafter a minute was lodged for the defender in the first action in which he stated that since the record was closed in the said action he has ascertained and now avers that the said Gebruder van Uden carry on business at Duisberg in Germany, and also at Antwerp, which is presently in hostile occupation, and are therefore enemies within the meaning of the Trading with the Enemy Act, 1914, and the Trading with the Enemy (Amendment) Act, 1914, and the Trading with the Enemy (Occupied Territory) Proclamation, dated 16th February 1915, and that the action should be sisted till the conclusion of the war.
Answers to this minute were lodged by the pursuers in which it was stated:the averments made in the minute lodged for Henry Burrell are denied. The sole partners of the firm of Gebr. van Uden which carries on business at Rotterdam are Mr J. van t' Hoff and his son Mr C. van t' Hoff, both of whom reside at Rotterdam. The said firm of Gebr. van Uden in Rotterdam has branches at Amsterdam and Zaandam in Holland, which are under the charge of their manager Mr. Lucassen. There is in Duisberg in Germany a firm carrying on business under the name of Gebruder van Uden, and the said J. van t' Hoff and C. van t' Hoff are interested therein individually, but they are not the owners of, or sole partners in, the said business. The said firm is registered under German law, and is independent of the business owned and carried on by the Messrs van t' Hoff in Rotterdam as aforesaid. There is also a firm in Antwerp carrying on business under the name of Gebruder van Uden & Co., in which the said J. van t' Hoff and C. van t' Hoff are interested individually, but there are other interests likewise involved in the said firm, which is quite separate from and independent of the Rotterdam firm, and is registered under Belgian law. The firm of Gebr. van Uden in Rotterdam are not liable in any form or way for the debts and obligations of the said businesses which are carried on at Duisberg and Antwerp under the firm names of Gebruder van Uden and Gebruder van Uden & Co., and are not owners or entitled to the assets and rights of the said businesses or either of them.
On 30th November 1915 the Lord Ordinary (Ormidale) pronounced an interlocutor allowing a proof of the averments in the minute and answers, and three days afterwards, on 3rd December 1915, he pronounced a further interlocutor in which he restricted the arrestments used on the dependence of the Sheriff Court action to sums amounting in all to 1200. He granted leave to reclaim against both interlocutors.*
The pursuers reclaimed against both of these interlocutors, when the defender took advantage of the reclaiming note to move that the action should be sisted until the termination of the war, and that the arrestments should be recalled. The case was heard before the First Division...
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