Factor appointed by the Court of Session. - Act of Sederunt 1611.
Robert Playfair and Others v. William Walker, George Mawer, and Others
Date: 24 December 1788 Case No. No 30.
Money recovered by a factor on a sequestrated estate must not be placed in the hands of a private individual, but only in a Bank or banking house. If not so deposited the factor is liable.
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The estate of a merchant in Dundee having been sequestrated, and William Walker and George Mawer chosen factors, it was resolved by a majority of the creditors, that the sums recovered by them should be lodged in the hands of one or other of six merchants in Dundee, who were in use, in the same manner as bankers do, to take up money on promissory-notes, but who could not, properly, be said to carry on the business of banking.
The reason of this proceeding was, that there was no banker or banking-company in Dundee, who would give any thing for the use of money so deposited. And the greatest part of the creditors, and almost the whole effects falling under the sequestration were in the neighourhood of that town. Playfair, however, and other creditors, complained to the Court of Session, and
Pleaded, That the money recovered out of a bankrupt-estate may be properly secured for the creditors, it has been provided, that it shall be lodged ‘in a bank or banking-house, or in the Royal Bank or Bank of Scotland.’ A depositation, therefore, in the hands of any individual, though he may carry on the banking business, and a fortiori the placing of it in the hands of a person who cannot, with any propriety, be called a banker, is contrary to the words of the enactment; and, in many instances, might be attended with mischievous consequences.
Answered, The purpose of the legislature certainly was, That the money belonging to sequestrated estates should be intrusted to those persons only whose responsibility is so much the object of general attention as, in a great measure, to preclude the hazard of an improper choice. The circumstance of caarying on the banking business in partnership seems of no importance; nor does it appear that any exclusion was meant of persons who carry on an extensive trade, and who, by the trust which they uniformly receive of money on their promissory-notes, appear to be as much possessed of the public confidence as any banker can be. In the present case, the choice of those who are chiefly interested, influenced by reasons of common utility to all, ought to preponderate, if the words of the enactment can admit of any doubt.
The Court did not precisely determine, whether, in such cases, money could be deposited in the hands of an individual carrying on the trade of a banker; but it was thought, that the persons suggested by the creditors, not being bankers, the resolution complained of was unauthorised by the statute.
The Lords found, “That the lodging of the money in the hands of the persons mentioned in the complaint was not warranted by the statute; and decerned accordingly.” See No 276, p. 1251.
For the Complainers, Dean of Faculty.Alt. W. Miller
Fac. Col. No 52. p. 92.
