To hold that the actio reconventionis may proceed when the actio conventionis is not in dependence for judgment is to act on a principle after the reason of it has ceased to exist. For the judge after final decree is in the same position as if the first action had never been brought. It seems to be a strange anomaly that there should be jurisdiction before extract, and no jurisdiction after extract, when the powers of the judge are the same in either case. They are non-existent. I can see no reason for the want of jurisdiction after extract, except that the first action is not in dependence for judgment, and the same reason applies with equal force when final judgment has been pronounced.

I may appeal to the authority of Voet, who seems to me to explain accurately the reason as well as the limits of the rule, and I am led to do so all the more because in the case of Thomson v. Whitehead he was thought to carry the doctrine of reconvention to its utmost length. He uses a very significant equivalent for reconventio (vol. i. 78) in calling it "mutua petitio"-a phrase which implies that each petition is before the Court for judgment. In his view reconvention is admitted on this ground

Aequum enim visum fuit, ut judicem tanquam idoneum agnoscat unusquisque tanquam reus, quem tanquam actor etiamnum agnoscit. in tantum, ut et tanquam actor repellendus sit, qui causam reconventionis excipere tanquam reus recusat, neque reus ultra procedere teneatur in causa conventionis, si reconventus nolit ad mutuam respondere petitionem." No language could express more clearly that the actio reconventionis is admitted as an answer to an existing actio conventionis, and existing in the sense that it is before the Court for judgment. He makes his meaning even more clear in a subsequent passage when he says (vol. i. 80) "Post litem conventionis, jam judiciali sententia terminatam reconventionem frustra fieri, inter omnes fere convenit neque enim ullo tempore mutuæ petitiones dici possunt, quarum una jam finem habuit, antequam alterius initium esset." I cannot imagine any words more directly applicable to the case before us. He is not dealing with technicalities. He is discussing a point of general law, and he gives it as the almost universal opinion of jurists that a final judgment in the actio conventionis excludes the actio reconventionis. reason is obvious. After such a judgment the two actions cannot be "mutual" actions, or in other words they cannot be described as existing for judgment.

The

The point which we have to decide was not directly raised in Thomson v. Whitehead. The Court had only to determine whether a certain claim could be comprehended within the actio reconventionis. But they could not do so without entering more or less upon the considerations on which this question turns, and in holding that the jurisdiction was of a limited nature they went far to solve it. The late Lord President said that the rule will only apply "when the two claims-the conventio and

the reconventio-may be tried simultaneously, and terminated by a single sentence or by two sentences contemporaneous or nearly contemporaneous. These words are to my mind very clear, nor do I see how they fail in definition. They limit the jurisdiction to the case where the two actions can be tried together, or in other words to the case where both are at the same time in dependence for judgment. The power of pronouncing sentences is mentioned as a corollary to the fact on which the jurisdiction depends; and though the judge must have the capacity of pronouncing contemporaneous sentences it is not necessary that they shall be absolutely contemporaneous. The period which may intervene between them can have no bearing on the question of jurisdiction.

Lords

I see nothing to the contrary in the opinions of the other judges, and much in confirmation. Most, if not all, seem to recognise that reconvention is an equitable remedy in aid or extension of a jurisdiction which is being exercised, and therefore that the two actions must be in dependence for judgment at the same time. Cowan and Benholme cite with approval a passage from Vinnius which I think it worth while to quote at length-Vinn., lib. 4, tit. 6, ed. 1761, p. 859-Illud obiter adjicio, posse eum, qui per se competens non est, ex accidenti competentem fieri idque vel propter judicium jam coeptum vel propter prorogationem jurisdictionis. Coepti judici hæc vis est, tum ut actorem mutuæ petitioni seu reconventioni, ut nunc in foro loquimur, obnoxium reddat, hoc est, ut mutuas rei actiones ibi excipere cogatur, ubi ipse litem movit, tametsi prius ibi conveniri non potuisset, tum ut litigatores retineat in judicio conjuncto.' Lords Neaves, Mackenzie, and Jerviswoode shew that the action of reconvention is intended to enable the Court to deal effectually with all the questions which are raised in legitimate connection with the action of convention-as, for example, to reduce a deed on which the foreigner founds, or to consider pleas of compensation or of retention which are raised on the part of the original defender. Their view seems to be that the purpose of the action of reconvention is to complete an existing process, to the effect of enabling the Court to settle the claims on both sides.

If the two actions must relate to the same subject-matter it seems to be the natural consequence that the judgments in both must be contemporaneous, or nearly contemporaneous. There may not be the same necessity if the action of reconvention has a wider range. But in either case there must exist the capacity of pronouncing a contemporaneous judgment. It may be said that if the first judgment is pronounced in the action of convention, the jurisdiction in the other action must cease. It is not so. The existence of the first action is necessary to give jurisdiction in the other. But after the defender in the second action has pleaded on the merits, the contract of litiscontestation is

complete, from which he cannot withdraw.

It is urged that the circumstance that the decree is extracted satisfies the technicality, and that the jurisdiction may therefore be sustained. I do not understand the argument. It seems to me that the essential facts on which an equity depends must exist in truth, and that none of them can be represented or satisfied by a technicality. If it be a condition that the first action must exist for judgment at the time when the second is brought, that condition can not be satisfied after judgment has been pronounced. We cannot give an equitable remedy when the conditions of it do not exist in truth and substance.

I am aware that the decision of Lord Rutherfurd in Baillie v. Hume is against me, and I need hardly say that I have an unfeigned respect for any decision of that Judge. But no reasons were assigned for the judgment, and there was a strong inducement to entertain the action from the fact that it was laid on the wrongous use of diligence in the action on which the foreigner had sued. It raised a pure and somewhat technical question of Scotch law, and the defender may not have been very reluctant that it should be decided in a Scotch Court. Considerations of that kind, however, can do no more than indicate a reason why the defender should have acquiesced in the judgment, which remains an important authority against me. But availing myself of the light which has been thrown on the subject by the case of Thomson, I can come to no other conclusion than that which I have expressed.

There is another matter which deserves to be considered. Before the case was or could be heard on the plea of jurisdiction the final decree in the first action had been implemented. In accordance with our practice, all the pleas-whether preliminary or peremptory-were stated in the defences. But there could be no litiscontestation until the plea to the jurisdiction was decided. For there can be no litiscontestation before a judge who has no jurisdiction. The question is, whether the Sheriff was entitled to sustain his jurisdiction after the decree had been implemented, or in other words whether in determining the question of jurisdiction he was to have regard to the state of facts at the date when the summons was served, or at the time when his decision was asked. I am here assuming that in the former view the jurisdiction would be sustained.

If the jurisdiction depended on law there could be no doubt. When a defender is by law subject to the jurisdiction of the Court at the date of citation the jurisdiction will continue whatever changes may take place. We are not however dealing with a jurisdiction of that kind, but with a jurisdiction which depends upon equity alone. I do not think that anyone can appeal to an equity when the reason on whichit depends has ceased to exist, on the simple ground that he cannot use the equity for the purpose for which it was given. It is given

VOL. XXXI.

in order that the two cases may be considered together though in my opinion not necessarily with a view to a simultaneous decree. But when the final decree pronounced in the actio conventionis has been implemented, I see no principle on which the pursuer of the actio reconventionis can ask the Court to proceed with it. He is then suing what has come to be an entirely independent action. It aids no defence; for the defences to the previous action have been surrendered. It has not been brought to enable the Court to dispose of the claims of both parties in mutual actions; for if it is to proceed it must proceed alone. There is nothing on which the decree of the Court can operate; for the sum decerned for in the previous action has been paid to the creditor. Nothing remains to justify the Court in sustaining its jurisdiction except the fact that the respondents had been the first suitors-a reason which is in itself insufficient. In short, it seems to me that at the time when the appellant asked the Court to sustain its jurisdiction, the equity which could alone. have justified the demand had ceased to exist, and that his motion was properly refused.

For those reasons I am of opinion that the interlocutor of the Sheriff should be affirmed.

LORD TRAYNER-I agree with the majority of your Lordships in holding that the Sheriff-Substitute has erred, and that his judgment should be recalled.

We have, in the opinion of the Lord Justice-Clerk in Thomson v. Whitehead, a very full and clear exposition of the grounds on which jurisdiction ex reconventione is to be sustained, and all of the requirements necessary, according to that opinion (as I read it), to found such jurisdiction are to be found in the present case. The claim now made, as well as that which formed the subject of the actio conventionis, arise out of the same contract or transaction, and both cases were in dependence before the same Court at the same time-that is to say, this action was brought into Court while the actio conventionis was still a depending process. The only point in which the present case can be said to be wanting in the requirements necessary for jurisdiction ex reconventione is this-that looking to the state of the two processes, they could not have been terminated by a single sentence, or by two sentences, contemporaneous, or nearly contemporaneous. I leave out of view the fact that they could not be terminated by a single sentence, as that admittedly is not essential. It only remains to consider whether the two cases could have been terminated by sentences "contemporaneous or nearly contemporaneous. It is obvious that here we have no hard and fast rule; the words "contemporaneous or nearly contemporaneous" admit of a certain latitude as regards time as well as some differences of opinion as to what time will fulfil the description thus given. It is unfortunate that the rule should be exNO. XLV.

pressed in language vague enough to admit of considerable diversity of opinion as to its meaning and application. Does "nearly contemporaneous mean that the two sentences must be pronounced within days, or weeks, or months of each other? Or does the contemporaneousness of the judgment in the second action depend on what actually takes place, or upon what might have taken place? In the case before us it appears that the judgment in the actio conventionis was pronounced on 31st July 1893, and the judgment appealed against was pronounced on 8th February 1894, the interval being a little more than six months. If the Sheriff, instead of allowing a proof as he did on an incidental question about the dissolution of the defenders' firm, had at once allowed a proof of the whole averments of parties, he might have been in a position to decide the case on its merits (assuming jurisdiction) within the same time; and if so, it would not be extravagant to say that judgments so pronounced within six months of each other were "nearly contemporaneous." Indeed, but for the fact that the vacation in the Sheriff Court commenced the day after the Sheriff's judgment in the actio conventionis, the decision in the reconvention could have been pronounced a month or perhaps two months sooner. But I cannot think that the matter of jurisdiction is to depend on the accident of a vacation, or upon the manner in which the judge thinks right to deal with the case. I am not suggesting that in the present case there is the least room for finding fault with the Sheriff's mode of procedure. He was quite entitled to take the course he did. I am merely pointing out that a different course, if adopted, would have brought the two judgments considerably nearer each other in point of time. I can easily suppose circumstances under which the judgments in two actions like those we are now dealing with, arising out of the same transaction, depending before the same judge, might not be decided within a much greater interval than six months, and where such interval could not possibly raise a doubt as to the jurisdiction. But if that is so, then the question of jurisdiction cannot depend on the circumstance of the time, greater or less, which intervenes in point of fact between the judgment in the one case and the judgment in the other. I venture to think that what is meant by the cases being terminable by judgments nearly contemporaneous is this-that there shall be nothing in the cases themselves which precludes them from being so determined, but that no account is to be taken of anything in the forms of process, the sittings of the Court, the orders of the judge, or other accidental circumstance which may postpone the judgment in the one case longer than in the other. Viewed thus, I think the present case was one which might in ordinary course have been disposed of almost contemporaneously with the actio conventionis, and that in so far as the Sheriff has proceeded on the ground that the cases could not be so decided, he has erred.

But further, I think that the point of time when the question of jurisdiction or no jurisdiction is to be determined is the date when the actio reconventionis is brought. If there is jurisdiction, then the subsequent procedure in the case or cases will not destroy it. And, in my opinion, the only tests, at that date, of jurisdiction are (1) do the actions arise out of the same transaction, or are they ejusdem generis? (2) is the actio conventionis still in dependence? and (3) do the cases in themselves admit of being terminated by judgments nearly contemporaneous? If these questions are answered in the affirmative, there arises jurisdiction ex reconventione; if otherwise, not. Apply ing these tests here, I think jurisdiction ex reconventione was well founded.

I do not go into the other question disposed of by the Sheriff-Substitute as to the constitution of the defenders' firm. I agree in what has been said on that subject by your Lordship in the chair.

The Court pronounced this interlocutor :

"The Lords having heard counsel, Sustain the appeal: Recal the interlocutor complained against: Remit to the Sheriff to proceed in the cause as accords."

Counsel for Appellant-Ure-Salvesen. Agents-Dove & Lockhart, S.S.C.

SECOND DIVISION.

[Lord Kincairney, Ordinary. GIBSON (ROSS ROBERTSON'S TRUSTEE) v. WILSON AND OTHERS. Bankruptcy-Sequestration- Reduction — Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), and Bankruptcy Act 1869 (32 and 33 Vict. cap. 71).

In

In 1885 on a debtor's petition in the Bill Chamber, with consent of a concurring creditor, sequestration was granted, and a trustee appointed, who ingathered and divided the estate, and was afterwards discharged. 1893 a trustee upon this bankrupt's estate, under an alleged arrangement with creditors in England in 1881, sued the trustee in the Scottish sequestration for reduction of the Scottish decree of sequestration, and all that had followed thereon, as incompetent and inept from the beginning, in view of the liquidation proceedings in England. Under the English proceedings three different trustees had been appointed before the pursuer, but no attempt had been made to ingather the bankrupt's estate. It was not averred that the defender had acted improperly. It was stated at the bar,

but not averred upon record, that a sum of money belonging to the bankrupt was lodged on deposit-receipt in a Scottish bank which the pursuer wished to obtain, and which he feared the bank would refuse on the ground that the Scottish sequestration existed.

From circumstances stated in the case it was doubtful if the English bankruptcy proceedings actually existed in 1885, but the Court held that even assuming that proceedings were really pending in the English Court of Bankruptcy at the date of the Scottish sequestration, as no interest was stated which concerned the defender, he was not the proper contradictor, and must be assoilzied.

On 13th September 1884 David Hay Wilson, solicitor, Edinburgh, presented a petition in the Sheriff Court of Edinburgh, under the Debtors (Scotland) Act 1880 and the Bankruptcy and Cessio (Scotland) Act 1881, for cessio of the estates of Andrew Ross Robertson, residing in Edinburgh. Decree in the petition was pronounced by the Sheriff on 11th November, and extracted upon 17th December 1884. David Hay Wilson was elected trustee in the cessio.

Upon 14th May 1885 Andrew Ross Robertson, with consent of John Arthur Trevelyan Sturrock, S.S.C., as concurring creditor, presented a petition for sequestration in the Bill Chamber.

Upon 2nd June 1885 sequestration of his estates was awarded by the Lord Ordinary on the Bills (Trayner) in terms of the David Bankruptcy (Scotland) Act 1856.

Hay Wilson was appointed trustee in the sequestration, and upon his death Charles John Munro, C.A., Edinburgh, was appointed to that office by act and warrant dated 2nd October 1885. Munro realised the estate, and after paying the legal expenses he divided the balance among the creditors, and was discharged.

Upon 14th July 1893 David Gibson, C.A., Liverpool, trustee in an alleged liquidation by arrangement or composition with creditors, taken out in the London Bankruptcy Court on 9th July 1881, of the affairs of the same Andrew Ross Robertson (designed as of 12 Calthorpe Street, Gray's Inn Road, in the county of Middlesex), brought an action of reduction of the decree of cessio, the decree of sequestration, and the acts and warrant appointing the trustees under these proceedings. He called Munro and the legal representatives of the late David Hay Wilson as defenders.

The pursuer averred that upon 9th July 1891 a petition for liquidation of Ross Robertson's affairs by arrangement or composition with his creditors, under and in terms of the Bankruptcy Act 1869 (32 and 33 Vict. cap. 71), and rules made in pursuance of that Act, was presented in the London Bankruptcy Court by the bankrupt himself, and notice of a meeting of credi tors was duly summoned, and the notice published on 15th July 1881 in the London Gazette. At the meeting so called, held on 25th July 1881, Mr Alexander Hosie, commission agent, London, was appointed

trustee. Upon 15th April 1889, by a resolution of creditors, Mr Hosie was removed from his post, and Mr Thomas Steven Lindsay, C.A., of London and Edinburgh, appointed in his place. On 17th April 1891 Mr Lindsay was removed from office by resolution of the creditors, and Mr Short, Incorporated Accountant, London, appointed trustee. Upon 31st October 1892 Mr Short was removed, and the pursuer Gibson was appointed trustee. "(Cond. 15) The decree of cessio and award of sequestration, and acts and warrants before mentioned were and are illegal, incompetent, and inept ab initio, for the reasons before stated, and also by reason of the said liquidation by arrangement of the affairs of the said Andrew Ross Robertson in the London Bankruptcy Court on 9th July 1881 under and in terms of the Bankruptcy Act 1869 (32 and 33 Vict. cap. 71), sec. 125, subsecs. 1 and 5, and rules made in pursuance of said Act. Said liquidation by arrangement still continues and is unclosed, and was continuing and pending on 11th November and 17th December 1884, and 2nd and 23rd June and 2nd October, all in the year 1885, the dates of the said pretended decree of cessio, extract thereof, and interlocutor or decree awarding sequestration of the estates of the said Andrew Ross Robertson, and the said pretended acts and warrants."

The defender Munro narrated his connection with the bankrupt's estate, from which it appeared that when he accepted office as trustee the assets consisted of certain stock of Scottish banks, which at the dates of the cessio and sequestration stood in name of the bankrupt's sisters. A multiplepoinding was raised regarding this stock, and the claimants were, inter alia, the present defender Munro, as trustee on the bankrupt's sequestrated estate, the bankrupt himself, his sisters, and the chief official receiver in bankruptcy in London, who in virtue of the provisions of the English Bankruptcy Acts represented and claimed as representing creditors under the English Bankruptcy of 9th July 1881.

After proof, the Lord Ordinary (Kinnear) ranked and preferred the defender Munro to the bank stock in question, being the fund in medio, and repelled the claims of the other claimants. As regarded the Official Receiver in Bankruptcy, his Lordship said "The claim of the Official Receiver in Bankruptcy in London cannot be sustained in competition with his (the trustee in the sequestration), because the sequestration proceedings, in respect of which he claims, were closed and the debtor discharged in December 1882, and the sequestration was not awarded until May 1885."

The defender averred-"(Stat. 6) In virtue of the decision pronounced in the said action of multiplepoinding in favour of this defender he realised the bank stock, and after defraying the expenses he had incurred and paying those he was ordained to pay by the Court, he divided the balance amongst the creditors in accordance with his deliverances on their

claims thereon, which, as before stated, were adhered to on appeal by the bankrupt both by the Lord Ordinary and the Inner House. The defender has obtained his discharge as trustee in the said sequestration."

The pursuer pleaded "(2) The said Andrew Ross Robertson having been made bankrupt in the London Bankruptcy Court in 1881, and which bankruptcy is still subsisting and pending, the said pretended decree of cessio, and interlocutor or decree of sequestration, and acts and warrants, were and are incompetent and illegal, and in violation of the Bankruptcy Statute (32 and 33 Vict. cap. 71), and general rules made in pursuance of said Act, and ought to be reduced."

The defender pleaded-"(1) The pursuer has no title to sue. (2) The action is incompetent. (4) No relevant nor sufficient grounds averred to sustain the conclusions of the summons. (8) Mora. (9) The whole proceedings complained of having been legally initiated and carried through, and this defender discharged as trustee, he ought to be assoilzied with expenses."

Miss Alice Wilson, called as representative of the first trustee on the sequestration, lodged defences but took no part in the discussion, and pursuer's counsel afterwards consented to her obtaining absolvitor with expenses against the pursuer.

Upon 27th February 1894 the Lord Ordinary (KINCAIRNEY) pronounced this interlocutor-"Repels the pleas-in-law for the pursuer; sustains the second, fourth, eighth, and ninth, pleas-in-law for the defender Charles John Munro: Assoilzies the whole defenders from the conclusions of the summons, and decerns.

"Note. The pursuer designs himself trustee in the liquidation by arrangement or composition with creditors, taken out in the London Bankruptcy Court on 9th July 1881, of the affairs of Andrew Ross Robertson, and concludes for decree of reduction (1) of a decree of cessio of Robertson's estate, dated 11th November 1884; (2) of a decree of sequestration of that estate pronounced in the Bill Chamber on 2nd June 1885, and of two acts and warrants confirming, as trustees on the sequestrated estate, the now deceased David Hay Wilson, and after his death, the defender Charles John Munro. The most important conclusion is that for reduction of the decree of sequestration, and I shall consider that conclusion in the first place.

"One ground of reduction of the award of sequestration, stated in condescendence 14, was abandoned at the bar, viz., that the debt of the concurring creditor was insufficient in amount. Counsel for the pursuer admitted that he could not ask reduction on that ground.

"There is no other reason of reduction of the decree of sequestration stated on the record except what is stated in condescendence 15, which is this--that the award of sequestration was and is illegal, incompetent, and inept ab initio, by reason of the liquidation by arrangement of the affairs of Andrew Ross Robertson in the

London Bankruptcy Court on 9th July 1881, which liquidation continues and is unclosed, and was continuing and pending on the date when the sequestration was granted.

"On examining the record I can find no distinct averment that a liquidation of Robertson's affairs was ever constituted by order of Court or resolution of creditors. No such order or resolution is produced, or indeed said to exist, although copies of certificates of appointment of the successive trustees are produced. It may be that, if I were to proceed perfectly strictly, I might throw out this action for want of any relevant averments of title. But this apparent defect in the record (which was not adverted to at the debate) may perhaps arise from mere inadvertence, or it may be that I may be under some misunderstanding on the point; and therefore for the purposes of the present judgment I assume that there existed a real process of liquidation of Robertson's estate by arrangement or compromise in the London Bankruptcy Court, and that that Court had jurisdiction to deal with that liquidation. I also assume that the liquidation had the same effectso far as relates to the present question-as an adjudication in bankruptcy.

"Making these assumptions in the pursuer's favour, the case which he presents is that the award of sequestration pronounced in the Bill Chamber on 2nd June 1885 must be reduced because there was at its date a bankruptcy of Robertson's estate depending in the London Bankruptcy Court. That is the sole ground of reduction. It is not averred that the award of sequestration was obtained by any fraud practised on the Court, or on account of any misstatement made, or error under which the Court laboured. The pursuer does not state who the creditors are for whose behoof he appears, or that there are any creditors now claiming in the English bankruptcy. It is not said that the Scotch trustee holds or is accountable for any part of the bankrupt's estate, or that there exists elsewhere any part of the bankrupt's estate which the pursuer cannot recover by reason of the Scotch sequestration. There is no statement that the reduction has been brought with any practical purpose at all. Further, it is not said that the pursuer or those who preceded him in his office were not aware of the proceedings in the Scotch sequestration. Presumably they knew of them, because a Scotch sequestration is a public proceeding, and under section 48 of the Act of 1856 must be advertised in the London Gazette. In the absence of any averment of ignorance, I hold that the trustee under the English liquidation was aware of the proceedings in Scotland, and the pursuer now offers no explanation of his delay in making his challenge. The plea of the pursuer is therefore of the most general and unqualified character.

"I think the pursuer's contention cannot be supported, and that for various reasons.

"(1) There is no authority or precedent for a reduction of an award of sequestration. None of the counsel have found in the books any trace of such a decree, and that appears