Scottish Court of Session Decisions

Lord President—This is an action of furthcoming directed against William Telford, merchant, Johnstone, as common debtor, and the arrestee is described as “James Reid, writer, Johnstone, clerk to the Commissioners of Police of Johnstone, and as such on behalf of and representing the said commissioners.” Among other defences it is pleaded that “The arrestee neither held nor holds, nor has the control of, any funds belonging to the common debtor, either as an individual or in his capacity of clerk to the commissioners;” and further that “An arrestment in the hands of a clerk to commissioners of police, acting under 13 and 14 Vict. cap. 33, does not, unless repeated or intimated by the arrester to the treasurer appointed and acting under that Act, attach any funds due to creditors of such commissioners.” The interlocutor of the Sheriff — Substitute gives effect to these defences, and holds that the arrestment was not validly laid on. The debt due to the common debtor is in the hands of the Police Commissioners of Johnstone, and the question is whether the action is validly laid against that body as arrestees?

Now, this depends entirely on the provisions of the Statute 13 and 14 Vict. cap. 33, and it is necessary to attend somewhat carefully to these provisions, because the arrangement for the appointment of the officials of a body like these Police Commissioners is a little peculiar. The 51st section directs the commissioners to appoint a clerk, who is to keep the books and records of the commissioners and their committees, and to give certified copies or extracts of these books and records, and so far his duty is entirely confined to keeping books—in short, to act exclusively as a clerk. Then the 53d section directs the commissioners to appoint a treasurer and collector, who are to grant bond with sufficient sureties for their intromissions and the faithful execution of their office. The 54th section gives the commissioners power to allow reasonable salaries to be paid to these three officials. The 55th section provides that the “collector shall be obliged to lodge all money received by him in a chartered or other bank, or in one of the branches of such bank in the burgh to be fixed by the commissioners, upon an account to be opened in the name of the commissioners, and to be operated upon by the treasurer for the time.” Then the 57th section provides that the same person may be appointed both treasurer and collector but not clerk. Lastly, the 58th section provides that “all actions, suits, or proceedings in respect of any matter or thing relating to the execution of this Act to be brought by or against the commissioners shall be in the name of their clerk or treasurer or collector for the time being, as the party, pursuer or defender, representing the commissioners.”

Now, under most statutes of this kind there is one official, and one only, in whose name bodies of commissioners are to sue or be sued, but under this Act either the clerk or the treasurer or the collector may represent the commissioners, and looking to the duties devolving on each of these officials, it seems to me that it depends on the nature of the proceeding which is the proper official to represent the commissioners. Now, the object of the present proceedings is to attach funds in the hands of the commissioners which they are due or owing to the common debtor. But the way in which funds belonging to the commissioners are to be treated is quite clear. They are to be lodged in a bank or branch bank in Johnstone, upon an account in the name of the commissioners. Arising as they do from assessments, they are to be lodged in that bank by the collector, and once there they are to be operated on only by the treasurer. Now, what has been done in the present case is to arrest funds belonging to the commissioners in the hands of the clerk. But the clerk has nothing to do with these funds, and never can have any money in his hands belonging to the commissioners. And the effect of arresting funds in the hands of the clerk would be that the treasurer might pay away the sums arrested without the slightest knowledge of the arrestment. That will not do. I think, therefore, for the reasons given by the Sheriff-Substitute, that the pursuer has mistaken his remedy. He ought to have arrested in the hands of the treasurer as representing the commissioners—not certainly as treasurer to the commissioners (that would be an entire mistake), but as representing the commissioners. He is their proper representative in a matter of this kind. It is necessary to explain this distinctly, because in certain circumstances a different rule might prevail. If the only person in whose name the corporation could sue or be sued had been the clerk or the secretary, there would be no choice. The only way to arrest would then be in the hands of the only person entitled to represent the body, and to arrest in the hands of a person not entitled to represent the body would be an entire mistake. He is their mere hand, and the case would fall under that series of decisions which show that

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