Scottish Court of Session Decisions

Lord Kinnear—The question in this case is a very simple one. The action appears to be a novel and unscientific form of multiple poinding, The pursuer makes no statement of double distress, but it is possible, however, to infer from the statements of the defenders that there may be a competition on the fund in medio, and at all events no objection has been taken to the competency of the action, and therefore I think we may go on to consider the only question which has yet been raised.

The fund in medio is a sum of money which was paid to the pursuer by the defender Stephen Haddow. The averments are very meagre, but there is enough, I think, to enable us to dispose of the case. The substance of these averments is that Haddow's affairs having become embarrassed he consulted the pursuer, who endeavoured to arrange a composition settlement, and with a view to carrying through a settlement Haddow paid a sum of £100 to the pursuer. It is not stated on record that the pursuer failed to procure a settlement for his client, but since it appears that Haddow's estates have been sequestrated it may be inferred from the fact that his creditors refused to accept a compromise.

This being so, and the money having been placed in the pursuer's hands for a specific purpose, which has failed, it is clear that he is bound to return it. The pursuer, however, claims to deduct from the £100 the sum of £42, 4s. 3d., the amount of two business accounts due to him by Haddow.

The Sheriff has repelled this claim, and I am of opinion that he was right. I agree with the Sheriff that this is not a case of a law agent's lien, for that lien, while it extends to deeds and documents put into the agent's hands in the course of his employment, does not apply to moneys in his hands, whether these are advances or cash balances. The Sheriff goes on to observe that the question here is one of compensation. Now I am not quite satisfied that this is so, because we have no evidence before us to instruct a liquid debt. But there may be a right of retention for an illiquid debt, and I will assume that the pursuer might have a good plea either of compensation or of retention if Haddow or his trustee were suing him for payment of an ordinary debt. But then it is well-settled law that specific appropriation is an absolute bar both to the plea of compensation and to the plea of retention, and here it is perfectly clear that the money was put into the pursuer's hands for a specific purpose and that that purpose has failed. I am therefore of opinion that the obligation on the pursuer to return the money is absolute, and that his claim for a deduction cannot be allowed.

Lord Johnston—A sum of £100 was advanced by the claimants to the bankrupt, and by him was handed to his agent for the express purpose of meeting the composition which he had offered to his creditors. As between him and his agent the money was his. He was mandant and his agent his mandatory. The composition was refused, and so ipso facto the mandate fell and the money was returnable as it would have been if the mandate had been recalled. I cannot distinguish this case from Macgregor ( 14 R. 535). There only a part of the money deposited was required and the balance fell to be returned. Here it happens, as there it might have happened, that none of the money was required and so the whole falls to be returned. As retention to compensate the debt of the mandant to the mandatory was incompetent in that case, so it follows it is in the present. In so deciding I assume that the debt proposed to be compensated is a general law agent's account incurred by the bankrupt mandant, and not an account incurred in relation to the subject of the mandate as in negotiating with creditors, for then I admit a different principle would apply.

As regards the case of Murray's Creditors (1744, M. 2626) chiefly relied on by the

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