Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Creditors of Menzies of Lethem contra William Law

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[Elchies, No. 10, Arrestment; Kilk., No. 3, ibid.]

The question here was, which of two arrestments was preferable, both laid on for a debt due by the Maiden Hospital of Edinburgh,—the one in the hands of the whole managers and directors, the other in the hands only of the treasurer.

Against this last, it was argued, 1mo, That an arrestment could only be laid on in the hands of the debtor; that only the corporation, or its representatives, were debtors; that the representatives of a corporation were the managers and directors, and not the treasurer, who is but their servant and can do nothing without their particular mandate. 2do, That this is further evident from the tenor of bonds granted by societies or corporations, where, for the most part, the directors are the parties contracting; and where the treasurer grants the bond, (which was the case here,) he does it by order from the corporation, and does not bind himself in the bond, but the managers and directors; and, as a proof of this, letters of horning cannot be directed against him but against the managers.

For the arrestment in the hands of the treasurer, it was said, that the treasurer, being the person who kept the cash of the company, made and received their payments, he was certainly the fittest person in whose hands they could arrest: that, in as far as concerned these matters, he might be said to represent the corporation. 2do, That it was not true that bonds were generally granted by the whole directors: that they were often only signed by the treasurer; and that though, in these cases, he acted by express commission from the managers, yet he was almost always personally bound himself; and though, in this case, the bond was not extant, yet that was to be presumed from the practice in like cases. 3tio, Though it cannot be denied that arrestments are often laid on in the hands of the whole managers, yet it is an ordinary practice to arrest in the hands of the treasurer; so that, if this is not law, the lieges, who relied upon a practice which never before had been controverted, will be deceived.

The Lords found, That, in regard of the practice, and because the treasurer in some sense may be said to represent the corporation in these matters, therefore the arrestment in his hands was as good as the arrestment in the hands of the whole managers.

It was not here decided (nor was it necessary,) whether, when the arrestment was laid on in the hands of the managers, it behoved to be when they were assembled in council, or if it sufficed to lay it in every one of their hands singly; but the Lords seemed to be of opinion that the last was sufficient.