Venning v Loyd
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 1859 |
| Date | 19 December 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 332
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 29 L. J. Ch. 152; 6 Jur. (N. S.), 81; 1 L. T. 277; 8 W. R. 117.
[193] venninu v. loyd. Before the Lord Chancellor Lord Campbell and the Lords Justices. Nov. 23, 24, Dec. 19, 1859. [S. C. 29 L. J. Ch. 152 ; G Jur. (N. S.), 81 ; 1 L. T. 277 ; 8 W. R. 117.] A policy was effected with an assurance company carrying on business both in Edinburgh and London, and after the death of the insured, the insurance money was claimed on the one hand by a mortgagee in England and on the other by a trustee under a Scotch sequestration. The trustee raised an action of " count and reckoning " in the Court of Session in Scotland, and the mortgagee instituted a suit in the Court of Chancery in England, each of them being a party to the litigation commenced by the other. An order was made in the suit for payment of the policy monies into Court, without prejudice to letters of arrestment which had issued in Scotland By the decree in the suit an account was directed of what was due to the mortgagee on his securities, and he was declared entitled to a lien on the policy monies for what should be so found clue. The trustee attended before the chief clerk on the taking of the accounts, and on further consideration the inoniea in Court were ordered to be paid to the mortgagee. Held, on appeals by the trustee from the interlocutory order and decrees, that the appeals ought to be dismissed, the Lord Chancellor holding that the Appellant had acquiesced in the decrees by attending before the chief clerk, and the Lords Justices holding (dissentients the Lord Chancellor) that the circumstance of the action in Scotland having been brought to an issue before the commencement of the suit in this Court, was not a ground for refusing to make the order and decrees under appeal. This case came before the Court upon two separate appeals by the two Defendants to the suit, from an order made before decree for payment of the fund in dispute into Court, from the decree at the hearing, and from the order on further considera tion made by Vice-Chancellor Wood in the cause. The short facts are extracted from the judgment of the Lord Justice Turner. Walter Charles Yenning, the Plaintiff' in the suit, was and had for several years been a solicitor carrying on business in London, in partnership with Messrs. Naylor & Robins. For some years previous to the 24th of October 1854, the Plaintiff, Walter Charles Yenning, from time to time made advances of money to Robert Henderson Robertson, a merchant,'also carrying on business in London, and Robert Henderson Robertson also from time to time became indebted to the Plaintiff's firm for professional business transacted by them for him. [194] By an indenture dated the 7th of January 18" 1, executed in thin country, and made between the said Robert Henderson Robertson, therein described as of Lothbury, in the City of London, merchant, of the one part, and the Plaintiff of the other part, Robert Henderson Robertson assigned to the Plaintiff a policy of insurance which he had effected iu the Scottish Widows' Fund and Life Assurance Society, for the sum of 5000, payable within three months after proof of his death ; and other securities were given by Robert Henderson Robertson to the Plaintiff, as to which no question arose in the suit. On the 27th of January 1851, the Plaintiff gave notice to the insurance office of the assignment to him of the 5000 policy. This assignment, although absolute on 1DE 0. F. ft J. 198. YENNING V. LOYD 333 the face of it, was in fact made to secure to the Plaintiff the amount then due to him ; but before the 24th of October 1854, the security had been extended by subsequent instruments, all of which were also executed in England, to cover the Plaintiff's subsequent advances, and also what was due the Plaintiff's firm for the business transacted by them on .Robertson's account. The Scottish Widows' Fund and Life Assurance Society, in which the policy for 5000 was effected, was an insurance office carrying on business both in Edinburgh and London, aud empowered by Act of Parliament to sue and be sued in the names of its trustees, in all Courts in any part of the United Kingdom or elsewhere. Robert Henderson Robertson had formerly carried on some business in Scotland, and on the 24th of October 1854, his estate was sequestered according to the law of Scotland; aud David M'Cubbin, an accountant at Glasgow, one of the Defendants in the suit, was appointed trustee of the sequestered estate. [195] On the '2'2d of August 1857 Robert Henderson Robertson died ; and on the 4th of September 1857 the Defendant David M'Cubbin raised an action of "count and reckoning," in the Court of Session in Scotland, against the Plaintiff Walter Charles Vennirig, in effect, for an account of the estate of Robertson possessed liy him, and of his dealings therewith, and payment of the balance which might be due from him on the account. In this action the Defendant M'Cubbin, on the 4th of September 1857, laid an arrestment jurisdidionis fu-ndtmilte. cauxd on the monies assured by the 5000 policy in the hands of the Scottish Widows' Fund and Life Assurance Society, and afterwards, on the 7th of September 1857, he laid a further arrestmeut on those monies in the hands of the Assurance Society until security should be given to answer his claim in the action. The monies coming due upon the policy having been thus arrested in the Scotch suit, the Plaintiff Walter Charles Venning appeared in that suit, and a condescendence having been exhibited, he put in his answer thereto, but before putting in the answer, and on the 3d of February 1858, he filed the bill in this suit against the trustees of the assurance society and David M'Cubbin ; and in his answer to the concleacendence, by which he claimed a very large balance to be clue to him, he stated the filing of his bill, and that his claim had been thereby brought under the cognizance of this Court. He pleaded, amongst other things, that he was not bound to account except according to the law and practice of England ; and that the action ought to be sisted until the issue of the proceedings in this Court. The Scotch suit was still pending; but no decree or sentence had yet been pronounced on it. It was stated only to have reached the stage of a revised condescendence. [196] The Plaintiff, by his bill in this cause, prayed payment of the monies assured by the policy, and the Defendant, M'Cubbiu, appeared to the bill. By an order made in the cause, bearing date the 21st of April 1858, and which was made upon a motion on...
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