Anderson v North of Scotland Bank, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 31 October 1901 |
| Date | 31 October 1901 |
| Docket Number | No. 14. |
| Court | Court of Session |
Lord Kincairney, Lord President, Lord Adam, Lord M'Laren.
Bank—Retention—Compensation—Deposit-receipt in name of two persons one of whom a debtor to bank.—
A deposit-receipt was granted by a bank bearing that a sum of money had been received from A and B, ‘payable to either or the survivor of them.’
In an action by B with concurrence of A against the bank for payment of the sum in the deposit-receipt, the bank averred that the money truly belonged to A, and pleaded that they were entitled to retain it in security of a debt of larger amount due to them by A.
Held (aff. judgment of Lord Kincairney) that the defence stated was irrelevant, and that the bank was bound in respect of the express terms of their deposit-receipt to make payment to B.
This was an action brought by Charles Fyffe Anderson, tailor, Comerton, with the consent and concurrence of Miss Agnes Fyffe, against the North of Scotland Bank, Limited, concluding for payment of £96, 8s. 5d., being the sum contained in a deposit-receipt dated 4th August 1897, issued by the defenders' branch at Dundee.
The deposit-receipt was in the following terms:—
‘£96, 8s. 5d. North of Scotland Bank, Limited,
‘Dundee, 4th August 1897.
‘Received from Miss Agnes Fyffe and Mr Charles Fyffe Anderson, Comerton, Leuchars (payable to either or the survivor of them), Ninety-six pounds, eight shillings, and fivepence sterling, which is placed to their credit on deposit-receipt with the North of Scotland Bank, Limited.’
The pursuer averred that the sum in the deposit-receipt consisted in part of savings out of aliment which Miss Fyffe had received for the pursuer, and in part out of the joint savings of the pursuer and Miss Fyffe, and that Miss Fyffe had made a donation to him of the deposit-receipt so far as the contents were not already his.
The defenders stated that the money in the deposit-receipt belonged wholly to Miss Fyffe, that in 1885 Miss Fyffe became co-obligant with her brother, William Fyffe, in a cash-credit bond to the defenders, that in accepting Miss Fyffe as a co-obligant the defenders relied, inter alia, upon the security of the sum contained in the deposit-receipt, that the full amount of the credit under the bond had been exhausted, amounting to £300, and that Miss Fyffe was liable therefor. The defenders also stated that Miss Fyffe was indebted to them on a promissory-note for £71, dated 29th August 1896.
The pursuer pleaded;—(1) The defenders being according to the terms of their contract under said deposit-receipt bound to pay the contents of the receipt to the pursuer, and having refused to do so, the pursuer is entitled to decree as concluded for, with expenses. (2) The sum contained in the said receipt being the property of the pursuer, he is entitled to decree therefor, with expenses, as concluded for. (3) The defences lodged disclose no relevant defence to the pursuer's claim upon the defenders for implement of their contract with him to pay the contents of said deposit-receipt according to its terms.
The defenders pleaded;—(1) In the circumstances stated by the defenders they are entitled to retain the amount in the deposit-receipt libelled against the indebtedness of the said Miss Agnes Fyffe to them. (2) The sum contained in the deposit-receipt libelled being the property of the said Miss Agnes Fyffe, and she being indebted to the defenders to a greater extent than the said sum, the defenders are entitled to retain the sum in compensation pro tanto of the indebtedness to them.
On 26th October 1900 the Lord Ordinary (Kincairney) before answer allowed a proof, and evidence having been led, the Lord Ordinary on 30th January 1901 pronounced this interlocutor:—‘Finds (1) that the pursuer is entitled to decree in respect of the terms of the deposit-receipt libelled; (2) that it has not been proved that the money in the deposit-receipt does not belong to the pursuer: Therefore sustains the first plea in law for the pursuer: Repels the pleas in law for the defenders, and decerns in terms of the conclusions of the summons: Finds the pursuer entitled to expenses,’ &c.*
The defenders reclaimed, and argued;—It was proved that the money in the deposit-receipt was truly Miss Fyffe's, and the bank was therefore her debtor, and hers only, in that amount. If that were so, then there was nothing in the terms of the deposit-receipt to preclude the plea of compensation. That plea was founded in equity, and that being so, the actual ownership, and not merely the formal title, was what determined the rights of parties. On the assumption that the money truly belonged to her, Miss Fyffe could have sued the bank for it, and have proved that the other person whose name was on the receipt was merely her agent. If so, then the bank must have a corresponding and reciprocal right to distinguish between principal...
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