Gordon v Brock

NEIL M'CALLUM of Jamaica was possessed of considerable estates there, and, from time to time, made remittances to A. and J. Connell, merchants in Glasgow, who were his agents, and sent out such supplies as he required, and with whom he had an account-current. M'Callum died in 1835, leaving a settlement by which William Gordon of Jamaica was named his executor. Besides the general account kept by A. and J. Connell, in name of M'Callum, there was an account in name of ‘the Cousins Cove estate,’ which, at his desire, they entered separately in their books. The account consisted of remittances received from M'Callum, arising out of the estate, on the one hand, and supplies, &c. furnished to him, for the estate, on the other. At the death of M'Callum, A. and J. Connell were indebted in an admitted balance, both under the general account kept in his name, and under the account kept in name of the Cousins Cove estate. J. P. Bertram, W.S., the agent of Gordon, applied to Hunter, Campbell, and Co., W.S., the agents of A. and J. Connell, for payment of both balances. The terms of a receipt and discharge to the extent of the admitted balance on the general account in M'Callum's name were adjusted, and that balance, of £4524, was paid. But in regard to the balance under the account of the Cousin's Cove estate, which A. and J. Connell admitted to amount to £2639, it was objected by them, that it formed a fund which was not truly in bonis of M'Callum at his decease, but belonged to the estate of a predeceased brother of his, named Alexander M'Callum, and that Gordon, as Neil M'Callum's executor, had not a title to uplift and discharge it. Gordon alleged that the balance was truly in bonis of Neil M'Callum at his decease, so that Gordon, as his executor, was entitled to uplift and discharge it; but farther that he was executor of Alexander M'Callum, as well as of Neil M'Callum, and so had, in every view, a sufficient title. On October 21, 1836, Bertram wrote to Hunter, Campbell, and Co. as to certain steps which he had taken to obviate their objections to Gordon's title, and added, ‘In the mean-time, it occurs to me that Messrs Connell ought to consign the admitted balance upon Cousins Cove estate.’ Hunter, Campbell, and Co., on October 22, answered, as to the Cousins Cove ‘balance,’ that ‘the Messrs Connell are ready to pay that balance the moment their professional advisers assure them they are safe to do so. In these circumstances, and as the only impediment is an objection to your client's title, which it is in your power to clear up within a few days, your suggestion as to consignation appears to us unusual. But if you insist on it, we shall communicate what you have stated to the Messrs Connell.’ On November 11, Bertram wrote with certain documents, stating that he trusted these would ‘remove all obstacle to the payment of the Cousins Cove estate money to Mr Gordon's attorney.’ On November 16, Hunter, Campbell, and Co. answered, that they still thought Gordon's title insufficient, to which Bertram replied, on November 19, that he considered it was complete, and added, ‘I must therefore take my own measures for immediately securing the debt, unless your clients will, without further delay, consign its amount. This I hope they will agree to, since they admit their liability for the debt, and consignation will save me the necessity of resorting to such steps as may be requisite for securing my clients. Upon its being made, I have no objection to discuss the question of title with you, either judicially or by reference. I shall wait till Wednesday before adopting measures, that you may have ample time for communicating with your clients.’ After another interchange of letters, Hunter, Campbell, and Co. wrote to Bertram on November 23, as to Gordon's title, that A. and J. Connell ‘decline to pay the balance on that title,’ but that they were ‘ready to pay the balance’ whenever a good title to discharge it was presented to them. Next day Bertram intimated to Hunter, Campbell, and Co. that he had sent a summons of multiplepoinding to Glasgow for service on A. and J. Connell, as ‘the proper action to force consignation, and to bring all parties interested into the field,’ and that he should move for consignation of the admitted balance without delay. On the same day, Hunter, Campbell and Co. replied that A. and J. Connell would ‘be ready to obey an order of Court for consignation, whenever it shall be made in such form as will insure their safety.’ On November 25, A. and J. Connell made a remittance to Hunter, Campbell, and Co., in terms of the following entry, under that date, in their cash-book:—‘Cousins Cove Estate. Remitted through British Linen Co. to Hunter, Campbell, and Co., W.S., Edinburgh, to be disposed of by them in payment or consignation of balance due this estate, £2639, 14s. 4d.’ On November 26, Hunter, Campbell and Co., took the following deposit-receipt from the British Linen Co. as to the remittance:—‘Received from Messrs Hunter, Campbell, and Co., W.S. Edinburgh, two thousand six hundred and thirty-nine pounds fourteen shillings and fourpence, which is this day placed to the credit of their deposit-account with the British Linen Company.’ On the same day they wrote to Bertram, that they had received the remittance, ‘with interest at 4 per cent to yesterday. We have in the mean-time lodged that sum in the British Linen Company, on a deposit-receipt in our names, which, as the Messrs Connell's sole desire is, to obtain a sufficient discharge of what they owe, we are ready to dispose of in any way that is consistent with their safety. From this date they shall be accountable only for bank interest on that sum. We have no objection, on your naming the clerk with whom you mean to lodge the M. P., to place the deposit-receipt in his hands, indorsed by us, and with the following marking:—“This receipt contains the admitted balance on the Messrs Connell's account for Cousins Cove estate, and is lodged with the clerk, to be disposed of as the Lord Ordinary may appoint, in M. P. Connells v. The Rep. of Alex. and Neil M'Callum.”’ On November 29, Bertram answered, ‘As requested in your letter of 26th instant, I beg to acquaint you that I have lodged the M. P. Connells v. Gordon and others, with Mr Thomas Bruce, D. C. S. for the purpose of being called. To prevent mistakes, I think your indorsation should bear, that the receipt “contains the balance admitted by Messrs Connell to be due on their account with Neil M'Callum for Cousins Cove estate,” &c., instead of saying generally, that it “contains the admitted balance,” &c. for you will observe that my clients do not admit the correctness of any of the accounts. I am glad to find that the Messrs Connell have at last done what I long since requested them to do, by consigning the money admitted by them to be due.’ The terms of the indorsation on the receipt were arranged, and the following indorsation, on November 30, was made on it by Hunter, Campbell, and Co.:—‘This receipt contains the balance admitted by Messrs Connells to be due on their account-current for Cousins Cove estate, and is lodged in process of multiplepoinding at their instance against the representatives of Alexander and Neil M'Callum, in order to be disposed of as the Court shall appoint. (Signed) Hunter, Campbell, and Co., W.S.’ On the same day, Hunter, Campbell, and Co. lodged...