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[Sheriff of the Lothians.
Facts:
A deposit-receipt bore that a bank had “received from the trustees of the deceased William Sawers” certain trust funds by the hands of the law-agent of the trust, payable on the joint-order of the law-agent and John Sawers, a beneficiary.
A creditor of John Sawers who held
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an extract-decree against him arrested in the hands of the bank the sum “due and addebted by them to the said John Sawers,” and thereafter brought an action of furthcoming. Held that the creditor had not attached the sum in the deposit-receipt, as arrestments had not been used in the hands of the “trustees of the deceased William Sawers,” in whose name the sum was deposited in bank, and the action dismissed.
The late William Sawers of Willeslea died on 5th May 1877. He left a trust-deed and settlement in which he nominated certain parties his trustees for the purposes specified therein, and, inter alia, that the free annual proceeds of his estate should be paid to his brother John Sawers of Parkfoot during his (John Sawers) life.
The trustees entered on the management of the estate, and as funds accumulated in their hands they deposited them from time to time in the bank by the hand of Mr Alexander Wylie, W.S., who was agent for the truster, and who continued to act for the trustees.
On 15th September 1886 a deposit was made of £269, the receipt for which was in the following terms:—“Received from the trustees of the late William Sawers of Willeslea, Shotts, by the hands of Alexander Wylie, W.S., Edinburgh, payable on the joint-order of the said Alexander Wylie, and John Sawers of Parkfoot, Shotts, the sum of Two hundred and sixty-nine pounds and sevenpence sterling to their credit in deposit-receipt with the National Bank of Scotland, Limited.”
A dispute having arisen between John Sawers (the liferenter) and William Sawers' trustees, the amount due to John Sawers was, pending the dispute, consigned in bank.
John Sawers being dissatisfied with the accounts of the trustees, on 18th February 1886 raised an action in the Sheriff Court at Hamilton of count, reckoning, and payment, and obtained a decree in his favour for £269, 0s. 7d. (the amount contained in the deposit-receipt above referred to), which decree became final on 11th July 1889.
Andrew Clark, solicitor, Leith, had acted for several years as agent for John Sawers, and had done law business for him, and incurred expense on his behalf. He rendered his account to Sawers on 20th September 1888.
The account was taxed by order of the late Lord Fraser, who on 20th March 1889 pronounced decree in Clark's favour for £202, 17s. 4
d. 1 2 Clark extracted his decree, and on 8th April 1889 he executed an arrestment in the hands of the National Bank of Scotland of the funds contained in the deposit-receipt above referred to.
Clark thereafter raised a furthcoming in the Sheriff Court at Edinburgh, and prayed that the National Bank should be ordained to pay to him £202, 17s. 4d., being part of the sum of £269, 0s. 7d. contained in the deposit-receipt of 15th September 1886 already referred to, and which he had arrested in their hands.
He pleaded that the amount due to him by Sawers having been judicially ascertained and contained in the said extract decree in his favour, he was entitled to payment thereof out of the sum contained in the said deposit-receipt.
The action was defended both by John Sawers and Alexander Wylie, W.S., on behalf of Sawers' trustees.
John Sawers pleaded—(3) That as the pursuer had not arrested funds which belonged to him, the action was incompetent.
Alexander Wylie pleaded—(1) All parties not called, and (2) that the action was irrelevant.
On 20th January 1890 the Sheriff-Substitute ( Hamilton) sustained the first and second pleas-in-law for Wylie, and the third plea for the defender Sawers, and dismissed the action.
“ Note.—The Sheriff-Substitute is of opinion that the pursuer has not effectively attached the sum contained in the deposit-receipt mentioned on record, in respect he did not arrest in the hands of the ‘trustees of the deceased Wm. Sawers,’ in whose name the said sum was deposited in bank. In any case the pursuer should have called the said trustees as parties to the present action.
The second statement for the defender Wylie points to the necessity of a multiplepoinding being raised with reference to said sum.”
The pursuer appealed to the Sheriff ( Crichton), who on 17th February 1890 dismissed the appeal, and adhered to the interlocutor appealed against.
Note.—The Sheriff concurs with the Sheriff-Substitute in thinking that the pursuer ought to have arrested in the hands of the ‘trustees of the deceased William Sawers.’”
The pursuer appealed to the Court of Session, and argued—That the arrestments were good; that by the decree of 18th February 1889 the sum in the said deposit-receipt was declared to belong to the defender John Sawers; and that the pursuer, by the extract-decree of the Court of Session in his favour, was entitled to £202, 17s. 4d. of the sum in the deposit-receipt.
Counsel for the defenders were not called upon.
At advising—
Now, this deposit-receipt is in these
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In these circumstances the money contained in this deposit-receipt was not due by the National Bank to John Sawers at all, and therefore the arrestments upon which this action of furthcoming was founded are bad, and the action itself accordingly falls to be dismissed.
The pursuer as a creditor of Sawers, holds a decree against him for the sum of £202, 17s. 4d., and there was nothing to have prevented him, if he had chosen, from using arrestments in the lands of William Sawers' trustees, and indeed nothing that has taken place up to this time can in any way affect that right.
The sum contained in the deposit-receipt in question was paid into the National Bank on the joint-receipt of Alexander Wylie, and John Sawers; and the mistake which the pursuer has made is in thinking that the mere depositing of this sum transferred the right to it from the trustees to John Sawers. That was clearly not so, and nothing of the nature of a transfer to John Sawers ever took place. To hold anything else would, in circumstances like the present, result in gross injustice. In illustration of this one need only call to mind a very ordinary case. Suppose in the course of the transfer of a heritable estate that for some reason or other the sale is not carried through at the ordinary time, and that, pending some small dispute, the price is deposited in bank in the joint names of the purchaser and the seller. The mere circumstance that the seller's name was in the deposit-receipt would give his creditors no right to arrest the money in the hands of the bank, otherwise the purchaser's money might be carried off, and yet from some cause he might never obtain a title to the lands. This illustration shows, I think, the fallacy of the pursuer's argument, and makes it clear that the right to this fund remains untransferred in the trustees of the late William Sawers.
The
The Court dismissed the appeal.
Counsel for the Pursuer— J. Brodie Innes. Agent— Andrew Clark, Solicitor.
Counsel for the Common Debtor— J. Guthrie Smith. Agent— Alexander Gordon, S.S.C.
Counsel for the Defenders Sawers' Trustees— R. V. Campbell. Agents— Wylie, Robertson, & Rankin, W.S.