Scottish Court of Session Decisions

The Sheriff-Substitute ( Birnie) allowed a proof, at which Mr Stewart deponed that James Leishman, Sneddon had died after the sequestration, and that his estate had been wound up in a peculiar manner by the sale of the whole estate to the relatives of the bankrupt for a sum which would yield the dividend which it had been estimated it would yield if wound up in the ordinary manner. He explained that he had received the price from the purchaser Mr Whitelaw on 21st August 1880, and had kept it in his safe with the other sum belonging to the estate until the dividends became payable on 10th December, when he began to make payment to the creditors, and continued doing so at intervals during that and the succeeding month. He stated that from 10th December he looked on the money representing the dividend due to Thomas Sneddon as that person's property, held by him as one of the attorneys for him, and that he paid out of it an account due by Thomas Sneddon. He made no entry in his books of any transfer of the money to Thomas Sneddon, and did not remove the balance of the money from the safe, and it was accordingly lying there on 18th December when the arrestment was used, along with the other money which was being used to pay dividend. The money was so treated, as he explained, in order to prevent it from being subject to arrestment by creditors of Thomas Sneddon, it being his view that money in his hands as attorney was as secure from arrestment as if it had been in the hands of Thomas Sneddon himself. A minute of the attorneys was produced at the bar by which Stewart was authorised to discharge the composition due to Thomas Sneddon.

The Sheriff-Substitute pronounced this interlocutor:—“Finds that on 18th December 1880 the pursuer arrested in the hands of the defender James Stewart, trustee on the sequestrated estate of James L. Sneddon, and attorney for Thomas Sneddon, as such trustee and attorney, and as an individual, moneys due by him to the said Thomas Sneddon: Finds that at said date the said defender had in his hands, either as trustee or attorney, moneys exceeding the sum arrested: Finds that he held said moneys as attorney for Thomas Sneddon: Finds that he is one of three attorneys for Thomas Sneddon, but that this was not known to the pursuer or his agent: Finds in law that the funds in his hands as said attorney were attached by said arrestment: decerns furthcoming against the said defender: Finds the common debtor, the said Thomas Sneddon, liable in expenses to the date of the lodging of the defences: Finds the defender, as attorney for the said Thomas Sneddon, liable in expenses since said date,” &c.

He added this note—“Thomas Sneddon was ranked on James L. Sneddon's sequestrated estate, and entitled to a dividend of about £170. Mr Stewart, as trustee on James L. Sneddon's estate, received money to pay the dividend on that estate, and kept it in his safe. Off this money he paid the creditors other than Thomas Sneddon, having the dividend due to Thomas Sneddon in the safe. Circulars were sent to the creditors that the dividend was payable on 10th December, that is, eight days before the arrestment on which this action depends. Mr Stewart says that on the date of the arrestment the money must be held to have been in his hands as attorney for Thomas Sneddon, and could not be arrested for a debt of Thomas Sneddon's, as an arrestment in the hands of an attorney against his principal is invalid. I think it must be held that after the 10th December the money was in Mr Stewart's hands as attorney for Thomas Sneddon, but that it was competently arrested in his hands as such. By the power of attorney, Mr Stewart and his brother attorneys are entitled to intromit with and manage all Thomas Sneddon's property, and are expressly required to count and reckon with him. It seems to me that in such circumstances funds could be arrested in his hands. ( Telford's Executors v. Blackwood, February 3 1866, 4 Macph. 369; Lairments v. Shearer, March 3, 1866, 4 Macph. 540; Dove Wilson, Sheriff-Court Practice, second edition, page 333.)

“Mr Stewart further argued that he was merely the agent of the other attorneys, and that it is incompetent to arrest in the hands of an agent; but he was not merely agent, he was attorney, and in possession of the funds as such, and, as it seems to me, is liable to and protected by the decree of furthcoming.”

The Sheriff ( Clark) adhered on appeal, with this note—“At first sight this case appears somewhat complicated, but when examined into these complications disappear. It is said that the arrestee being merely an attorney for the common debtor resident abroad, arrestment is incompetently used in his hands. It may be sufficient answer to this, that from the power of attorney produced it is evident that the power given is that of commission, and, according to Erskine, 6, 5, arrestment used in the hands of one to whom the common debtor has committed the custody of his goods is valid. It was next argued that to make the arrestment effectual it should have been used in the hands of the whole body of attorneys or commissioners, or at least in the hands of their quorum. This might be very true if it were sought, by means of the arrestment used in the hands of one of their number to attach funds in the hands of the others; but in the present case it is admitted that the arrestee is in possession of the funds. It might be argued, in some circumstances, that it was necessary to convene the whole body of commissioners before the Court, in case they might have any plea to urge on the part of their constituent which was unknown to that one of their number in whose hands the arrestment was used. This objection, however, is plainly untenable, when it is considered that the common debtor has himself entered appearance and lodged defences, and these in no respect affect this matter.”

Stewart appealed, and argued that an arrestmen. in the hands of one of several attorneys was bad. The case of Black v. Scott, January 27, 1830, 8 S. 367,

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