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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0352.html
Cite as: [1835] CA 13_352

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SCOTTISH_Shaw_Court_of_Session

Page: 352↓

Brown

v.

Thomson
No. 109.

Court of Session

2d Division T.

Jan. 28 * 1835

Ld. Moncreiff, Lord Glenlee, Lord Medwyn, Lord Justice-Clerk.

Robert Brown,     Pursuer.— G. G. Bell. Reverend John Thomson and Others,     Defenders.— More.

Subject_Jurisdiction—Savings' Banks—Process.—

1.Under the SavingsBanks' Act, questions as to disputes between depositors and managers, &c., where not otherwise settled by the regulations, must be brought before the sheriff of the county where the bank is situated, and is incompetent before the Court of Session. 2. Observed, that where, in such cases, the defenders resided beyond the bounds of the county, the Court would grant letters of supplement for citing them.

In 1815, a savings' bank was instituted at the village of Lessudden, in the county of Roxburgh, under the designation of “The Parish Bank of Lessudden,” intended chiefly “for the benefit of tradesmen, servants, and labourers in the parishes of St Boswell's, Maxton, and Mertoun,” the two former parishes being in the county of Roxburgh, and the latter in that of Berwick. The directors were, by the regulations, appointed to be the ministers of these parishes for the time being, and nine heritors, chosen by the members. In 1827, it was resolved to break up the bank, but it was immediately afterwards discovered that the treasurer had embezzled the greater part of the funds; and, in 1834, the pursuer, Brown, a depositor to the extent of £9, 10s. raised an action in this Court, concluding for payment against the ministers of Maxton and Mertoun, and the only son and representative of the minister of St Boswell's, on the ground that these parties, having taken the active direction of the bank, and yet been guilty of culpable negligence in not maintaining a check and superintendence over the treasurer, were responsible for the funds deposited, and by the treasurer embezzled.

In defence, it was inter alia pleaded, that the action was incompetent before this Court, in respect of the special jurisdiction in regard to disputes arising as to savings' banks, created in the sheriff of the county where the bank is situated, by the 59 Geo, III, c. 62, whereby it is enacted (§ 9), that, “in all cases not provided for by the rules and regulations of any institution taking the benefit of this act, where any matter of dispute shall arise among the managers, or other members as aforesaid, of any such institution, or of any persons acting under them, and any individual depositor therein, or any executor, administrator, next of kin, or

_________________ Footnote _________________

* This case was decided on the 15th, and accidentally omitted in its proper order.

creditor, then, and in such case, such matter of dispute shall be submitted to the sheriff or Stewart, or his substitute, of the shire or stewartry within which such institution is situated, for his decision; whereupon the said sheriff or stewart, or his substitute, shall be bound to decide forthwith, and his decision shall be final and conclusive, and binding on all parties; and in no case whatever shall it be competent to bring such decision under the review of any court of law whatever, by appeal, suspension, advocation, reduction, or any other form of process.”

To this it was answered, that, though two of the defenders were resident within the jurisdiction of the Sheriff of Roxburgh, the third—Mr Duncan, the minister of Mertoun—was not, and that, as letters of supplement were incompetent in personal actions, it was necessary to resort to this Court, whose jurisdiction always subsisted, unless expressly excluded; while, on the other hand again, it was maintained, that, where a statutory jurisdiction was thus created, the Court might competently grant letters of supplement to explicate that jurisdiction, by citing parties over whom the statute gave the sheriff jurisdiction, but whom, as beyond his bounds, he could not cite.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Finds that this is an ordinary action at the instance of a party,

_________________ Footnote _________________

* “This cause may be of considerable importance. Whatever may be the source of the dispute, or the grounds of conclusion, the action itself is simply for payment of a sum deposited in a savings’ bank. If the clause of the statute does not apply, or has not the effect of excluding the jurisdiction of this Court, any depositor in any such bank, may bring an action here for ‘sixpence,’—the rules expressly admitting of such a deposit; and the same effect will in many cases be produced, if it be held that, wherever one of the acting directors resides in a different county from that in which the institution is situated, the Sheriff has no jurisdiction. Nevertheless, the difficulty created by this last circumstance is deserving of consideration. The general rule certainly is, that, in personal actions, where one of several principal obligants resides forth of the Sheriff's jurisdiction, where others may have their residence, it is not competent to force him to appear by means of letters of supplement. This is the clear import of the case, Blackwood v. Halliday, Jan. 1731, Mor. 8237; and the doctrine of Mr Erskine is not different from this, as, in speaking of jurisdiction, ratione rei sitae, he evidently alludes to real actions. Lord Kaimes, in his valuable tract on the subject, clearly holds this in point of principle. But the present case is very special, Here is an express statute, which gives to every such institution a special locality in respect of jurisdiction. All parties concerned, whereever they may live, are thereby required to submit every matter of dispute to the Sheriff of the county where the institution is situated. If this were held to be of the nature of an arbitration, as the pursuer argued, this Court could compel Mr Duncan, if he refused to enter into the submission But taking it, as the after clauses regarding the Sheriff's decision and review by advocation, &c. seem to indicate, to mean a judicial proceeding before the Sheriff, it is plainly intended to be exclusive, and to comprehend all cases of such disputes, without exception. If so, there must be means of explicating the jurisdiction. The difficulty might be greater if none of the defenders resided in the county; and it might then be a fair question, whether they should not all be held to have a domicile for jurisdiction at the place of business of the bank, at least quoad hoc. But that state of difficulty does not arise. If an action were brought before the Sheriff of Roxburgh, two of the defenders could be effectually cited; and though Mr Duncan, if called at all, might possibly plead that he was not answerable to the jurisdiction, this would only produce a defence, that all parties having interest had not been legally called. The question would then arise, whether he could be called by letters of supplement from the Court of Session. The Lord Ordinary thinks that he could; because there is a statutory jurisdiction given to this Sheriff, in the particular case, which is fully equivalent to that which arises from the local situation of a particular subject) and there being parties already in the field who are by residence amenable, and who, if the statute has force, can be called nowhere else, that statutory and local jurisdiction must be explicable by the known form used in analogous cases.

“It being stated that this is taken as a leading case, with the view of determining whether all the depositors in this bank, to a large amount, may not try their claims in this Court, the Lord Ordinary thinks that expenses must be given. It might have been more doubtful if the action had been brought before the Sheriff of Roxburgh, and Mr Duncan had refused to appear, or had pleaded want of jurisdiction.”

who states himself as having deposited a small sum of money in the savings' bank referred to, concluding simply against the three defenders, as the acting directors of that institution, for payment of that money: Finds that such a claim or demand when resisted, as set forth in the summons, clearly resolves into a matter of dispute between the managers of the said bank and an individual depositor therein, which is comprehended in the express words, and must be presumed to be within the meaning of the 9th section of the statute 59th Geo. III. c. 62: Finds that the provision of that statute is imperative, that every such matter of dispute shall be submitted to the sheriff of the county ‘within which such institution is situated,’ for his decision, and that such decision shall be final, and not subject to review: Finds that it is necessarily implied in the creation of such a special jurisdiction, that all the parties whom it is necessary to call as defenders to the action, wherever they may reside within Scotland, may be competently called as parties by the forms known to the law in other cases of jurisdiction, established independent of personal residence; and in respect of the statutory jurisdiction in this case, in the shire of Roxburgh, where the institution is admitted to be situated, and within which two of the defenders are admitted to have their residence: Finds that no difficulty in explicating the jurisdiction can arise from the circumstance of the other defender, Mr Duncan, residing in the adjoining county: Therefore sustains the said first preliminary defence; finds the action incompetent in this Court, dismisses the same, assoilzies the defenders, and decerns; reserving to the pursuer to proceed as he may be advised in any action before the Sheriff of the county of Roxburgh: Finds expenses due, and remits the account, when lodged, to the auditor to be taxed.”

Brown reclaimed.

Lord Glenlee.—The interlocutor is right. Where the subject of jurisdiction is a well known matter, as to which jurisdiction is frequently exercised by this Court, it requires very strong terms to exclude it. But a special privilege is conferred by the statute on those bodies which were not before known, declaring that questions with them shall be decided finally by the Sheriff, otherwise they might be ruined by litigations in this Court. It is said this is a common law question—the payment of money deposited. That, however, is not material. The statute says, that “in all cases not provided for,” &c, the dispute shall be submitted to the Sheriff, whose judgment shall be final; and that reaches this case, unless one of those specially provided for. It appears plain to me that the clause should have the meaning the Lord Ordinary gives it; and he is also right as to letters of supplement. If it be once granted that jurisdiction is given to the Sheriff by the statute, it is just the same as if he had it by common law, and there is room for letters of supplement to extricate such jurisdiction. The true occasion of letters of supplement is to remedy the want of power in the Sheriff to send officers to cite, &c, and the only thing letters of supplement do, is to let messengers at-arms act in citing.

Lord Medwyn.—I entirely concur. No one knowing the history of these societies, and the object of the legislature to provide a cheap mode of settling disputes, can doubt its intention to cut off the jurisdiction of the Supreme Court. But intention is not enough, if there are not words to support it. If a new jurisdiction is given to a different set of judges to dispose of what was within our jurisdiction, it is only cumulative, unless expressly cut off. But where new bodies are called into existence, it is not so necessary to cut it off expressly, if the privilege is clearly given to the new bodies, of a final judgment before the Sheriff. In regard to friendly societies, our jurisdiction is not otherwise cut off than here, yet the Court repeatedly have hold it excluded. As to the disputes being to be “submitted,” that is not material, though I think the proper form would be by petition to the Sheriff as judge, and not as arbiter. In one sense, this is a common law question—a depositor claiming money deposited; but so are all disputes of this kind with saving banks. It is, however, a matter of dispute, “arising among managers and other members:” Not only the spirit, but the words of the statute reach this case. Where the defenders reside in different counties, the difficulty is got over by application to the Lord Ordinary for letters of supplement. Where there is an arrestment of moveables in the Sheriff's jurisdiction, the arrestee is called as principal defender, and letters of supplement may be had against the common debtor, if in another county. I view this as very much in the same light. The jurisdiction is unquestionably given to the Sheriff of Roxburghshire over all the parties relative to this matter. Two defenders reside within his jurisdiction, and one resides beyond it. The Sheriffs officer can't reach him, but a messenger can, and where-ever jurisdiction is already given, there letters of supplement to cite the party, and explicate that jurisdiction, arc competent, and I think letters of supplement may issue in this case.

Lord Justice-Clerk.—I had no difficulty as to the intention of the legislature. It gave the privilege of a new, speedy, and cheap mode of settling questions. In regard to the friendly societies, in all questions among contributors, &c, our jurisdiction is cut off. The same thing is, I think, done here, and in interpreting a statute, we must have its objects in view. I agree with Lord Glenlee, that the societies would be ruined if our jurisdiction was open to the parties. As in the case of Orr v. Lindsay we found; our jurisdiction excluded, we must also find it cut off here. The jurisdiction being conferred by the statute, and extending to parties who may be beyond the county, it is clear that letters of supplement must be granted to explicate it. I am for adhering to the Lord Ordinary's interlocutor.

The Court accordingly adhered.

Solicitors: William Allan, S. S. C.— Robert White, W. S.—Agents.

 SS 13 SS 352 1835

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