Scottish Court of Session Decisions

This was an action of furthcoming at the instance of T. F. Gibb, C.A., curator bonis to H. W. Paterson, against John B. W. Lee, S.S.C., arrestee, and Bethune John Lee, executor-nominate of the deceased James D. Paterson, in which the pursuer craved decree against John B. W. Lee for payment of “the sum of £65, or such other sum or sums as may be owing by him to the said Bethune John Lee as executor foresaid, and arrested in his hands at the instance of the pursuer,” together with the sum of £38, 7s. 8d., conform to an extract decree and warrant of the Sheriff of the Lothians and Peebles obtained in an action “at the instance of the pursuer as curator bonis foresaid against the defender the said Bethune John Lee as executor foresaid.”

The pursuer averred that as curator bonis he had, in an action of count, reckoning, and payment against Bethune John Lee, as executor of J. D. Paterson, obtained decree for the sum of £68, 16s. 1d. with interest, together with the sum of £38, 7s. 8d. as taxed expenses; that John B. W. Lee had acted as agent for the executor and had in his hands, as such agent, a sum of £64, 4s. 8d.; and that by authority of the said extract decree he had executed arrestments in the hands of John B. W. Lee.

The extract decree was in these terms:—“At Edinburgh, the fourteenth day of May and the twelfth day of June Nineteen hundred and six, in an action in the Sheriff Court of the Sheriffdom of the Lothians and Peebles, at Edinburgh, at the instance of Thomas Fraser Gibb, chartered accountant, Edinburgh, curator bonis to Henry Welch Paterson, sometime residing at number five Sandford Street, Portobello … (pursuer), against Bethune John Lee, formerly residing at Granton Square, Granton,

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writer, now of number forty-seven York Place, Edinburgh, executor-nominate of the deceased James Duncan Paterson, who resided at number forty-one East London Street, Edinburgh, son of the deceased John Paterson, who resided at number five Sandford Street, Portobello, under his will, dated 2nd November 1896, and recorded in the Books of Council and Session 1st April 1897 (defender). The Sheriff decerned the defender to pay to the pursuer the sum of £64, 16s. 1d., with interest thereon at the rate of five per cent. per annum from thirteenth October 1905, and £38, 7s. 8d. of expenses: And the Sheriff grants warrant for all lawful execution hereon by instant arrestment, and also by poinding after a charge of seven free days if the defender is within Scotland, and fourteen free days if furth thereof.”

The schedule of arrestment was in these terms:—“I, Michael Hogg, sheriff officer, by virtue of an extract decree and warrant of the Sheriff of the Lothians and Peebles, at Edinburgh, thereon, dated the fourteenth day of May and the twelfth day of June, and extracted the twenty-seventh day of June, all in the year Nineteen hundred and six, obtained in an action in the Sheriff Court of the Sheriffdom of the Lothians and Peebles at Edinburgh, at the instance of Thomas Fraser Gibb, chartered accountant, Edinburgh, curator bonis to Henry Welch Paterson, … (pursuer) against Bethune John Lee, formerly residing at Granton Square, Granton, writer, now of number forty-seven York Place, Edinburgh, executor-nominate of the deceased James Duncan Paterson, who resided at number forty-one East London Street, Edinburgh, son of the deceased John Paterson, who resided at number five Sandford Street, Portobello, under his will, dated 2nd November 1896, and recorded in the Books of Council and Session 1st April 1897 (defender)—In His Majesty's name and authority, and in name and authority of the said Sheriff, lawfully fence and arrest in the hands of you, J. B. W. Lee, forty-seven York Place, Edinburgh, the sum of sixty-five pounds sterling, more or less, due and addebted by you to the said Bethune John Lee, defender, or to any other person or persons, for his use and behoof, by bond, bill, decreet, contract, agreement, or by any manner of way whatsoever; together also with all goods, gear, debts, sums of money, rents of lands and houses, and every other thing presently in your hands, custody, and keeping, pertaining and belonging to the said Bethune John Lee, defender, all to remain in your hands under sure fence and arrestment at the instance of the said pursuer. …”

The defender, John B. W. Lee, lodged defences, and pleaded—“(1) The action is incompetent. (2) The pursuer's averments are irrelevant and insufficient, and this defender should be assoilzied, with expenses.”

By interlocutor, dated 16th July 1907, the Sheriff-Substitute ( Guy) repelled the defender's first and second pleas-in-law.

Note.—“There can be no doubt that the averments of the pursuer are relevant, but it was argued that the action was incompetent in respect that it is an action of furthcoming founded upon a decree against an executor, and that the schedule of arrestment bears that the sum arrested is due and addebted by the arrestee to the common debtor, not in his capacity of executor, but in his individual capacity. I do not so read the schedule of arrestment. That document, in my opinion, must be read as a whole. The common debtor's capacity as executor is fully set forth in his description taken from the decree and warrant to arrest, and the arrestment bears to be of what is due by the arrestee to him as defender in the action in which the said decree was pronounced. This certainly covers what is due by the arrestee to the common debtor as executor, and may also cover what is due by the arrestee, if anything, to the common debtor as an individual, in respect that the decree upon which the arrestment followed was not only a decree for a principal sum against the common debtor as executor, but a decree for expenses. The decree for expenses was not limited to his capacity of executor.”

On appeal the Sheriff ( Maconochie), by interlocutor dated 3rd October 1907, recalled the Sheriff-Substitute's interlocutor and sustained the defender's first plea-in-law.

Note.—“I regret that I cannot see my way to concur in the interlocutor of the Sheriff-Substitute. It appears to me that the case is ruled by the decision in Wilson v. MacKie, 1875, 3 R. 18. The present schedule of arrestment is precisely in the form of the schedule in Wilson's case, with this exception, that the arrested funds are here stated to be due ‘to the said Bethune John Lee (the common debtor) defender,’ the word ‘defender’ not being present in Wilson's case. I do not think that the addition of that word affects the case. The fault which, in my opinion, is fatal to the competency of the furthcoming which proceeds on the arrestment, is that it is nowhere said that the sum alleged to be due by J. B. W. Lee to Bethune John Lee is due to him as executor of James Duncan Paterson; and looking to the terms of the decree on which the arrestments proceed, it was, I think, necessary that that fact should be explicitly stated. The arrestment thus being bad, it follows that the furthcoming must be dismissed.”

The pursuer appealed, and argued—The arrestment was not objectionable. The words “said Bethune John Lee, defender,” referred to the previous description of the principal debtor, and that description showed that he was sued in his capacity as executor. Accordingly it was sufficiently clear that it was money due to Bethune John Lee as executor that was arrested. The question in MacKie v. Wilson, October 22, 1875, 3 R. 18, 13 S.L.R. 8, was as to damages, and the validity of the arrestment was not actually in issue, and, in any case, the insertion of the word “defender” distinguished the present from that case. But assuming that the arrestment was bad as to any sum due to the principal debtor as

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executor, it was good as to any sum due to him personally; and the pursuer held a decree for expenses under which the principal debtor was personally liable— Anderson v. Anderson's Trustee, November 13, 1901, 4 F. 96, 39 S.L.R. 94.

Counsel for the respondent were not called on.