Scottish Court of Session Decisions

The Lord President held that, on October 1865, the defenders were under an obligation to pay over the sum then due to the pursuers, whatever it was, unless any part of it was invested in such a way that it could, not be immediately called up. Now the defender's own statement was that, to the extent of £100, the money was in that position, but the rest of it was in bank. The defenders had not alleged any sufficient reason for retaining the sum confessedly lying in bank. They spoke about retaining it in case there should be any loss on the bond, but they had not made it intelligible how the pursuers could be made liable for any loss arising in that way. Any such loss would fall on the residue of the estate. The residue appeared to be large. From the absence of any statements on record to the contrary, it must at least be assumed that the residue was quite capable of sustaining any such loss as was here apprehended, and such loss must then fall upon residue, unless it occurred through the malversation of the trustees. The notion, therefore, that the defenders were right to retain the money in bank was out of the question, and it followed necessarily that that money was payable as in October 1865; and if not paid, must bear interest at 5 per cent. That was the ordinary rule, and there was nothing in the circumstances of this case to prevent the application of the ordinary rule.

As to the £100, that was in a different position, and would be payable only now, when made available by the sale of the subjects over which it was secured.

The other Judges concurred, Lords Deas and Kinloch holding that the pursuers were quite wrong in demanding a part assignation to the bond. That bond was a unum quid, which the trustees were entitled to hold and realise at their own discretion; and the introduction of a pro indiviso creditor into the bond might have greatly embarrassed the trustees in their management and realisation of the security.

In the circumstances, expenses to neither party.