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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. Lindsay [1873] ScotLR 11_12 (28 October 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0012.html Cite as: [1873] ScotLR 11_12, [1873] SLR 11_12 |
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[Sheriff of Lanarkshire.
In a case where an insolvent firm made a composition with their creditors, A, the brother of one of the pnrtners, became responsible for one of the instalments payable, and received in security certain sums from his brother B. He was relieved of his obligation, and soon after died without accounting for the sums so received, and B raised an action against the judicial factor on A's estate for repayment. Held that an entry in A's cash book and a relative letter by B, purporting to have been written and received at the time, were equiva lent to A's writ, and as such sufficient to prove a trust against A's estate.
In 1858 the affairs of M. C. Thomson & Co., flax spinners, Glasgow, of which the pursuer was a partner, became embarrassed, and they made a composition with their creditors, one of the conditions of which was, that the deceased James Thomson, the pursuer's brother, should become security for one of the instalments payable under the composition. The pursuer deposited in the said James Thomson's hands, as security, certain sums amounting to £439, 8s. 9d., and the sums so deposited with the said James Thomson were duly entered by him in his books in his own handwriting to the credit of the pursuer, and the deposit was further explained, and its terms confirmed by the following letter, signed and addressed by the
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pursuer to the said James Thomson, and handed to him of the date it bears, viz.,—“2 St Andrew Square, Glasgow, 17 th January 1859,—Dear James,—Your having subscribed a bond, binding yourself for the last instalment for M. C. Thomson & Co.'s composition of 1s. 6d. per £, in addition to any security which they have or may offer to you, I hereby authorise you to hold and retain the following sums belonging to me, free of interest, until you are relieved of every obligation for them, viz., a sum of £265, 18s. 7d., realized from sale of shares in the National Building Society; a sum of £156, 2s. 2d., amount of a bill granted you for behoof of my children, for which you are trustee; also a sum of £17. 8s., being balance of a bill by the Messrs M. C. Thomson & Co., making in whole the sum of £439, 8s. 9d. sterling.—I am, Dear James, your affectionate brother. (Signed) William Thomson.” The said James Thomson was relieved of his said obligation on 27th October 1859, when the foresaid several sums were payable by him to the pursuer, but he failed to do so, and died a short time afterwards, without having paid to the pursuer the said sums so held by him. The pursuer, shortly after the death of the said James Thomson, lodged on his estate an affidavit to the verity of the said debt, but the same has not been paid. After James Thomson's death the said letter was found in his repositories, and in his cash book the sums concluded for were entered to the pursuer's credit. In these circumstances the pursuer raised this action in the Sheriff Court of Glasgow, to recover these sums from the defender, who was judicial factor on the estate of the deceased James Thomson. The pursuer pleaded—“(1) The said several sums concluded for having been held and retained by the said James Thomson, in security of the obligations undertaken by him and he being relieved thereof, was bound to refund the same to the pursuer. (2) The said James Thomson having failed to repay the said sums to the pursuer, and the same being still resting owing, the defender, as judicial factor on his trust estate, is bound to account for and pay to the pursuer the said several sums and interest, as concluded for. (3) In the whole circumstances, the pursuer is entitled to decree as concluded for, with expenses. ( Additional) The pursuer is not in any way bound by the acts or agreements of third parties, and the defender not having averred that the pursuer stated to him, or to the beneficiaries under the trust, that he would forego his claim, or any part of it, the second article in the defender's statement of facts is irrelevant and should not be admitted to probation.
The defender pleaded—“(1) The said James Thomson being now dead, the pursuer can establish the claims alleged by him only by the writ of the said deceased James Thomson. (2) The pursuer is barred by prescription from insisting in his present claim. (3) The pursuer having, as sole trustee on the estate of the deceased Jomes Thomson, represented the estate to be insolvent, and compounded with the creditors on that footing, is not entitled now to payment in full of any alleged claim at his instance. (4) The delay in instituting the present proceedings having rested with the pursuer, he is not entitled to claim interest thereon. (5) In any case, the pursuer is not entitled to more than bank interest. (6) Even though wholly or partially successful, the pursuer is not entitled to expenses against the defender, who, as an officer of court, is bound to appear and state defences.”
The Sheriff-Substitute found for the defender, and his judgment was reversed by the Sheriff.
The defender appealed to the Court of Session.
At advising—
The Court pronounced the following interlocutor:
“Find that the three sums, amounting in all to the sum of £439, 8s. 9d.. sued for, are entered by the deceased James Thomson, on
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whose estate the defender (appellant) is judicial factor, in the book or ledger No. 7/1 of process, in his own handwriting, as sums due by him to the pursuer (respondent): Find that the letter No 7/2 of process, addressed by the pursuer to the deceased James Thomson, was delivered to him of its date, and was retained by him, and found in his repositories after his death, and is thus, taken in connection with the said entries in his book and the bond after mentioned, equivalent to the writs of the deceased: Find it proved by the said letter and other writs that the said three sums were to be held and retained by the deceased free of interest, until he was relieved of every obligation under the bond aftermentioned: Find it proved by the bond No. 8/1 of process that the said deceased James Thomson became security for payment to the creditors of the bankrupt firm of M. C. Thomson & Co., of which the pursuer was a partner, of a composition amounting to a much larger sum than the total of the said three sums, which were received and held by the said deceased as a collateral security in case he should be called on to make payment under the said bond: But find that the said deceased was not called on to pay any part of the composition for which he had become cautioner under the said bond, the whole being paid by the bankrupts themselves: And find, in these circumstances, that the said three sums are still resting-owing to the pursuer, with interest from the date of citation: Therefore refuse the appeal, and decern: Find the appellant liable in expenses; allow an account thereof to be given in, and remit the same, when lodged, to the Auditor to tax and report.”
Counsel for Appellant—Solicitor-General ( Clark) and Balfour. Agents— Rhind & Lindsay, W.S.
Counsel for Respondent— Watson and Johnstone. Agent— T. J. Gordon, W.S.
M., Clerk.
