v. Fleming

ander Gilruth Fleming did, on several or one or more occasions during the period from 15th March 1882 to 27th August 1883 inclusive, the time or times more particularly being to the prosecutor unknown, within or near the office or premises in Commercial Street, Dundee, then occupied byyou, or by the Scottish Banking Company (Limited), or elsewhere in Dundee to the prosecutor unknown, wickedly and feloniously steal and theftuously away take the sum of £864, 10s. 5d. or thereby, being rents and feu-duties to the said amount received by you as sub-factor foresaid from the said properties as aforesaid: Or otherwise, you did fail to pay the said sum to the said Robert Yeaman, or to account to him therefor, and you the said Alexander Gilruth Fleming did, time and place last above libelled, wickedly and feloniously, and contrary to your duty and instructions, and in breach of the trust reposed in you as aforesaid, embezzle and appropriate to your own uses and purposes the said sum of £864, 10s. 5d. or thereby, being rents and feu-duties to the said amount received by you as sub-factor foresaid from the said properties as aforesaid, the said sum of money so stolen or embezzled and appropriated by you as above libelled being the property or in the lawful possession of the said Robert Yeaman or of the said Association, and consisting of bank or bankers' notes, and of gold, silver, and copper or bronze money, the particular amount and description of the said notes and coin being to the prosecutor unknown." (3) The third charge was that the prisoner having in 1879, in consequence of inability to pay his debts, granted a trust-deed for creditors, which as well as his insolvency subsisted till his sequestration in October 1883, and having projected and promoted a company constituted under memorandum and articles of association as the Scottish Banking Company (Limited), with nominal capital of £10,000,000 divided into £20 shares, and having its head office in Dundee, and which was now insolvent and in liquidation, and having been appointed general manager thereof, and having as such, without finding caution in terms of the articles, commenced business in March 1881, and carried it on till September 1884; "and you the said Alexander Gilruth Fleming, in the course of carrying on the business of the said company, having got into your custody and control, at the head office of the said company, as general manager foresaid, all the moneys of the said company, being the capital of the said company in so far as paid up, and the moneys lodged with the said company by depositors or persons having current accounts or operative deposit accounts with the said company, amounting all the said moneys to the sum of £5000 or thereby; and it having been your duty, and according to your trust as general manager foresaid, to hold and apply the said moneys only in the ordinary course of banking business for the best interest and security of the said company, and of the said depositors therewith, and in no event to appropriate the said moneys to your own uses and purposes, you the said Alexander Gilruth Fleming, taking advantage of your said position as general manager foresaid, and having no directors of the said company duly appointed to control or supervise you, did at various times during the period between the 19th day of January 1882 and 1st September 1884, both dates inclusive, the times more particularly being to the

prosecutor unknown, within the office or other premises of the said company in Commercial Street, Dundee, or elsewhere in Dundee to the prosecutor unknown, wickedly and feloniously steal and theftuously away take out of the moneys in your custody and control as general manager foresaid the sum of £2736, 11s. Sd. sterling or thereby, or part thereof: Or otherwise, you the said Alexander Gilruth Fleming, taking advantage of your position as general manager foresaid, and having no directors of the said company duly appointed to control or supervise you, did, times and places last above libelled, wickedly and feloniously, and contrary to your duty, and in breach of your trust as general manager foresaid, and out of the ordinary course of banking business, take to yourself, out of the moneys in your custody and control as general manager foresaid, unsecured and improper overdrafts on your accounts current with the said company, numbered respectively, 1, 4, 5 and 7, the said overdrafts amounting together, after deducting a sum of £217, 8s. 10d. at your credit on other accounts, to the said sum of £2736, 11s. 8d., and you did thus, then and there, wickedly and feloniously, and contrary to your duty, and in breach of your trust as general manager foresaid, embezzle and appropriate to your own uses and purposes the said sum of £2736, 11s. 8d. or thereby, or part thereof, the said sum of money so stolen or embezzled and appropriated by you as above libelled being the property or in the lawful possession of the said company, and consisting of bank or bankers' notes, and of gold, silver, and copper or bronze money, the particular amounts and description of the said notes and coin, and the amount so stolen or embezzled and appropriated by you at any one time, being to the prosecutor unknown."

The panel stated objections to the relevancy of the whole charges in the indictment.

Lord Adam certified the Case to the High Court.

Argued for the panel-(1) There was no relevant averment of theft in the first charge. The money was admittedly in his lawful possession as factor on the date libelled. In such circumstances it is the duty of the prosecutor to narrate in what way the lawful became unlawful possession-Hume, ii. 190; M'Kinnon, 4 Irv. 198and this he had not done. The present case was much stronger than that of M'Kinnon, who never had possession of the article by consent of the owner, whereas in this case the money was given to the accused with the true owner's consent under an obligation merely to account for an equal sum in any form he chose. It was essential to theft that there should be a felonious taking of the article stolen out of the possession of the true owner. In short, a factor could not commit theft of money entrusted to him in the exercise of his office, though he might embezzle it-Hume, i. 60; Scott, May 8, 1879, 4 Coup. 227. Further, the latitude of time libelled for one act of theft was unprecedented. The same objections applied to the other two charges of theft. In particular, in regard to the third charge, a bank manager could no more be guilty of theft than a factor, for the bank's money was officially in his charge. In regard to the first charge of embezzlement there was an entire want of specification. His obligation being merely as a factor to account, the prosecutor was bound to specify

. M., 1885

where he failed in his accounting-Scott (supra cit.); Rae, May 16, 1854, 1 Irv. 472. Here again the unusual latitude of time was taken without explanation. Either the money was embezzled at one time in one slump sum or in small sums at different times. In the first case the latitude was unnecessary; in the second it was unauthorised without specification of the separate acts and times in detail. The same objections applied to the second and third charges of embezzlement. As regards the whole charges of embezzlement, the case was on all fours with that of Scott, where the libel was found irrelevant, and differed from those of Duncan, Sept. 26, 1849, Shaw's Just. Rep. 270; and Gibb, May 3, 1871, 2 Coup. 35.

Replied for the Crown-It was enough in a criminal libel merely to state that on a certain date such offence was committed by certain acts; anything further was merely giving fair notice to the accused, in his interest, of the kind of evidence which was to be led against him. All the Crown had to show therefore was that such a distinct statement in time, place, and manner was contained in the indictment. The rest was merely surplusage, and did not affect the relevancy of the charge. The obligation of the pursuer in the first and second charges was relevantly averred to the effect that he was bound not merely to account but to hand over the ipsa corpora of the moneys received by him to the true owners. It would not be enough to aver a trust or duty in him to do so; it was necessary to aver how it came to be his duty to do so, and that was the object of the introductory narrative. He was simply a messenger to hand over the money, and failing to do so he stole it. It was enough to aver that he being a person in office with a duty to hand over the money, failed to do so. This was what was done here - Wormald, Mar. 27, 1876, 3 Coup. 246; Smith v. Wishart, May 18, 1842, 1. Br. 342; Blair v. M'Lullich, Oct. 29, 1880, 4 Coup. 355; Rae, supra cit.; Duncan,supra cit.; Gibb, supra cit. If there were any fault in the libel, it was only that the Crown in its anxiety to give due notice to the accused of the kind of case to be made against him, had made the narrative fuller than was absolutely necessary. But whatever might be said against the charges of theft, those of embezzlement were certainly relevant, and more especially the firstCity Bank case, Jan. 21, 1879, 4 Coup. 161; Laurence, Jan. 15, 1872, 2 Coup. 168. The species facti here were not in any of the charges in those of Scott's case, but rather those of Duncan, Smith v. Wishart, and Gibb. In Scott's case there was no relation of employment between the accused and the owner; Scott was merely a bill-broker. For the third charge there were not many precedents. It was the same charge libelled as in the City Bank case, but circumstances were stronger than in that case, for here there was a bankrupt manager acting without directors, while there was a reputedly solvent board of directors there. Similar objections were repelled in the case of Reid v. Gentles, Sep. 24, 1857, 2 Irv. 704. An unusual latitude in time was allowed in an occult crime of this kind. The question to be asked on that head was merely whether it was enough to cover the time during which the felonious taking went on, the detailed acts of which were, from the nature of the crime and position of the accused, necessarily unknown to the prosecutor.

At advising

Advocate v. Fleming, Feb. 21

LORD CRAIGHILL-There are three separate charges of theft in this indictment, with alternative charges of breach of trust and embezzlement. The relevancy of all has been objected to on the part of the prisoner; but on the one hand the objections to the charges of embezzlement were not so strongly urged as those to the charges of theft, and on the other hand the relevancy of these last were not so earnestly maintained as the relevancy of the charges of embezzlement. A decision upon all was left to the Court, and therefore on all judgment has now to be pronounced. I take up the several charges in their order, the relevancy of which we have separately to consider.

The first charge is theft, the species facti of which are that two payments amounting together to the sum of £382, 3s. 10d. having been made to the prisoner, and he having received those moneys as factor for and on behalf of the executrix of Mr Ireland, and on the trust and for the purpose libelled, and that he should in no event appropriate the same to his own uses and purposes, he did on one or other of the dates, and at one or other of the places libelled, wickedly and feloniously steal and theftuously away take the same, being the property or in the lawful possession of the said executrix or of the said trustee, and consisting of bank or bankers' notes, and of gold, silver, and copper money, the particular amounts of each being to the prosecutor unknown. To say nothing of other objectons, this as a charge of theft seems to me to be irrelevant, because the money said to have been stolen was at the time libelled in the possession of the prisoner as factor for the executrix of Mr Ireland, having, as the indictment bears, been received by him in that character. A factor is not a servant who receives money for the sake of custody; he is one doing business for another for hire. The moneys he receives are in his possession in that capacity, and these, though they may be embezzled, cannot be stolen, because the circumstances and the power over that which he receives prevent such taking as is necessary for theft. This, I think, is well explained by Lord Young in the case of Scott, 4 Coup. p. 234, where he says-"The distinction between theft and embezzlement consists in this-that in theft the property stolen is by the thief feloniously taken out of the possession of the owner or other lawful possessor, whereas in embezzlement the property which is the subject of it is already in the embezzler's own possession, having been lawfully received by him on account of the owner (into whose possession it has never passed) to whom he stands in a relation of trust. The chief and indeed essential feature of either crime is the felonious appropriation or conversion by the accused of the property of another, and this feature is common to both. The thief feloniously seizes property in another's possession; the embezzler feloniously violates the trust and confidence on which he received the property on account of another. Each unlawfully appropriates and converts to his own use property not his own." Many decisions were quoted, some to one effect and some to another, but none appears to me to be inconsistent with the exposition of the law in the passage which has been quoted. That most relied on by the counsel for the prosecution was the case of Wormald, March 27, 1876, 3 Coup. p. 246, the

Fleming

rubric of which bears that in an indictment charging alternatively theft and breach of trust, it was stated in that part of the minor which related to the charge of theft that the panel, being a lawagent, and having been entrusted by a client to uplift from a bank a sum belonging to him for the special purpose of investing the same in heritable security, he (the panel) uplifted and did then theftuously away take the said sum, and it was held that this was a relevant charge of theft. Here, however, the material fact that the money had been uplifted by Wormald before the time at which (no investment having been procured) he was authorised to lift it, is omitted, though that in reality, as explained by the Lord Justice-General, was the ground of judgment. The Lord Justice-General's words are these (p. 249)-"Assuming the statement in the minor proposition in as far as regards the charge of theft, the whole amounts to this, that Mr Donaldson had money in the bank of the amount of £600; that he was advised by Mr Wormald, as his law-agent, that it would be desirable to have that money invested in heritable security, and that in consequence of that he granted the necessary authority to Mr Wormald, as his lawagent, to invest the money in heritable security for him, and that in order to enable Mr Wormald to carry out his instructions Mr Donaldson endorsed in his favour certain deposit-recepts which he held for the money. Now, the duty of a law-agent in these circumstances clearly was to seek for an heritable security, and when he had found one, then to uplift the money from the bank and pay it to the borrower. But he certainly had no authority in the circumstances disclosed in the indictment to uplift that money till he had obtained an heritable security. Therefore when he uplifted the money without having obtained the heritable security he did an act which was not authorised by Mr Donaldson at all, and the statement is that in such circumstances he uplifted the money on the 8th September 1871, and on that day stole the money. Now, in these circumstances

I am driven to the conclusion that it is a relevant charge of theft.' There was thus obviously a felonious taking, and a clear ground upon which a charge of theft could be relevantly libelled. The present case is thus distinguished from the case of Wormald, because the money came lawfully into the prisoner's possession, and there is thus excluded a basis for the felonious taking which the circumstances afforded in the case of Wormald. But this is not all There is on the very question before us a clear and precise authority furnished by a passage in the work of Baron Hume, vol. 1, page 60, where he explains the law of this case in the following words:"Under the same rule falls the case of a factor who runs off with his employer's rents, after receiving them from the tenants. . This, though criminal, is, however, a fraud only, or breach of trust, and not an act of theft." Cases are referred to by which this doctrine is supported; and where there nothing else to refer to as matter of authority, its soundness never having been gainsaid, it would be sufficient, as I think, to support the opinion which I have expressed. The same view of the law is presented by Burnett, page 111; by Alison in his "Principles," page 356; and by Professor More in his "Lectures on the Law of

Scotland," vol. 2, page 388; as well as by our latest writer upon criminal law, Mr Macdonald. There is thus both principle and a body of authority in favour of the view of the law which I have adopted. My opinion is that this charge of theft as libelled is irrelevant.

On the alternative charge of embezzlement I have nothing to say, except that although it cannot be sail to be happily expressed, it is, I think, not irrelevant. In substance it contains all that is essential to, and nothing which is necessarily inconsistent with, embezzlement. Its language is in substance the same as that which is generally used in libelling such a charge, and therefore I think that the objection stated against it ought to be overruled.

The second charge of theft is similar in character to the first. The prisoner is there charged with stealing rents received by him as sub-factor to Mr Yeaman, who was factor to the owner of the property. The rule for the first charge therefore governs the second, and the same decision must in the case of both be pronounced. But there is another objection to the second charge which also would be fatal. The indictment bears that the prisoner having received from James Kinnes and the other persons named sums amounting to £864, 10s. 5d, and various other sums, being rents or feu-duties of heritable properties accruing and paid during the period libelled, and it being his duty and according to his trust to pay the same to the said Robert Yeaman as they were received, he did, at the times and places libelled, wickedly and feloniously steal and theftuously away take the sum alleged to have been stolen. Here there is no specification of the sums received, or of the dates or the persons at which and from whom those were received, and the relevancy has been objected to also on this ground. This objection as urged was, I think, too broad, but there is enough in it to invalidate the charge here libelled. The rule which should have been followed in the libelling of such a charge as this is that which was adopted in the case of Rae, May 16, 1854, 1 Irv. 472. There the objection to relevancy for want of specification was repelled. The inventory annexed to the indictment set forth the names of the persons from whom it was alleged the person accused had received the money. Moreover, the particular sums were mentioned, and these things being so, the Court held that this was sufficient information, and that to go further would be very embarrassing, as tending to load the indictment with matters which the prosecutor was not bound to establish. The Court did not think that the particular days or dates of the several payments must be set forth. Had the information which was given in Rae's case been given here, though it is not all which was held to be necessary in the case of Scott, I should have supported the relevancy of the charge, the species facti here coming nearer to the case of Rae than to the case of Scott. But unfortunately there is no specification of individual sums or of the persons from whom these were severally received, and for this reason also I think the objection to the relevancy of the second charge of theft must be sustained. The alternative charge of embezzlement must, for want of specification, likewise be held irrelevant. But for this defect of specification I should have repelled the objection, as the libelling, though

longer than necessary, in all matters material appears to be consistent with the usual style.

The third charge of theft and the alternative of embezzlement have been to me the cause of much greater anxiety than any of the others, and I have found difficulty in coming to a conclusion. Indeed, my opinion regarding the relevancy has varied from time to time. Both are clumsily and obscurely framed. This is due in large measure, if not altogether, to the introduction of superfluous, not to say irrelevant, matter. I was at one time disposed to think that, notwithstanding, the charge of theft could be read as involving practically and substantially a statement to the effect that the prisoner, taking advantage of his position as manager, and being without any superior control or supervision, put his hands into the coffers of the bank within the period libelled and stole the money which is the subject-matter of the alleged theft. I became sensible, however, more fully than I was before, that it would be of evil example to sustain this charge as libelled if this reading might be adopted. The first duty obviously of those by whom indictments are prepared is to make perfectly clear the nature and the grounds of charge, and if in any case there is a doubt as to that which is really intended, and which is the crime imputed to the prisoner, that uncertainty is of itself an objection that can hardly be averted. Now, I have not been able to get the better of the impression that this charge of theft as framed is susceptible of a double interpretation. It may mean that which I was disposed to take to be its import, or it may mean that moneys were paid to the prisoner by shareholders in payment of calls, and by depositors who came to pay money into the bank. In these circumstances 1

have come in the end to think that it is the safe course, not to say a necessary course, to sustain the objection raised against the relevancy, though there is in the circumstances as set. forth that which could be made the subject of a relevant charge of theft. It would be of evil example to sustain as relevant a charge which is clumsily and confusedly libelled. For this reason I am obliged to hold that this charge of theft is irrelevantly laid. The same opinion must be given with reference to the alternative charge of embezzlement. The vices of the libelling as regards the theft affect the libelling also of the charge of embezzlement. And I would only add that in coming to this conclusion as regards the embezzlement I am not supposed to depart in any degree from what was regarded as the modus operandi in disposing of the charge of embezzlement laid against Stewart in the case of Her Majesty's Advocate v. The City of Glasgow Bank Directors, January 21, 1879, 4 Coup. 166. For these reasons the objection to the relevancy of these charges ought, in my opinion, to be sustained.

LORD ADAM concurred.

LORD YOUNG-I also concur in the judgment which Lord Craighill has delivered. The result of it is that we sustain the relevancy of the first charge of the libel with respect to the charge of breach of trust and embezzlement, and in all other respects we find the libel irrelevant. I would venture to suggest for the consideration of

the prosecutor that in preparing a new libel on the first charge which we find relevant-the charge of breach of trust and embezzlement-the libel should be confined to that charge, which is sufficient to go to trial with at once, with reasonable considerations of legitimate regard for the accused party. I think all the narrative upon the first page of the indictment should be omitted as superfluous, and that the statement should simply be that upon the date specified certain sums of money were paid to the panel upon a certain trust, and that in breach of that trust he embezzled the money. That is all that need be stated. The charge is that Mr Menzies on a certain day paid the panel certain sums of money in trust for him to hand over to so-and-so to do so-and-so with it, and that he did not do it, but that in breach of trust he embezzled and appropriated the money to himself.

With respect to the third charge, I think it necessary to explain, in concurring as I do in the observations of Lord Craighill, that we are all of opinion that if a manager or any other officer in a bank has access to the money in the bank's coffers during a certain period, that will in general be held sufficient to warrant great latitude in point of time, and that it is not necessary to do more than to say that within that period, taking the latitude allowable in the circumstances, he stole within the bank premises certain sums of money, gold, silver, notes, and so on. We are all very clearly of that opinion, and the form of libel in such a charge is well established. You must state the position of the accused party, and the access which it gave him to commit theft from time to time without observation and detection. That excuses the latitude. Then there is no more necessary than to say that within that period he stole the money. Now here the latitude taken is between 19th January 1882 and 1st September 1884. It is alleged that the panel availed himself of his opportunity of access to the money in the bank within that period to steal the money. There would be no objection to that charge. But the indictment begins by stating that he having been unable to pay his debts, granted, on or about 27th May 1879, a trust-disposition and assignation, and having afterwards been sequestrated, he got up a bank with a capital of ten millions, and instituted himself as manager, and carried on the business of the bank from 10th March 1881 to 1st September 1884, and got certain sums paid to him as subscriptions by shareholders. We are not told in the indictment, but it was explained in the argument, that these sums amounted to a trifle over £400. Then the indictment goes on to say that during that period of years he received from depositors certain sums of money, which, together with the subscriptions, amounted to over £5000, and that, beginning in 1882 and going on to 1884, he stole the money, apparently by overdrawing an account which he had opened. That is not the way of stating a charge of that kind relevantly and clearly, and I entirely concur in the observations of Lord Craighill that in this matter, which was referred to the Court by Lord Adam on Circuit, we could not with any propriety sanction this charge as it is presented to us. If the prosecutor should find it necessary to go on with this matter there will be no difficulty in stating a charge in the usual way, and in accordance with the views that have been ex

pressed. The judgment we now pronounce is that which I have already sufficiently indicatedto sustain the relevancy of the first charge of the libel as a charge of breach of trust and embezzlement, and with respect to all the other charges to find the libel irrelevant.

The Court accordingly repelled the objections to the relevancy of the libel as far as regarded the charge of breach of trust and embezzlement in the first charge; in all other respects found the libel irrelevant; and on the motion of the AdvocateDepute granted leave to desert the diet pro loco et tempore.

SECOND DIVISION.

[Sheriff-Substitute of Lanarkshire. WALLACE (J. BELL'S TRUSTEE) V. SHARP (E. M. BELL'S TRUSTEE). Bankruptcy-Trust-Declaration of Trust on Eve of Bankruptcy-Conjunct and Confident.

"held

In 1876 a father bought certain shares in joint-stock company for his son, who had no funds of his own. The transfer and share certificate were in the son's name, and the latter was kept in the father's custody. The son's name was entered in the share register and list of shareholders. He attended the meetings of shareholders and received payment of dividends, which he applied to his own use. In 1884, when on the point of granting a trust-deed for creditors, the son granted a letter stating that the shares were Therepractically in trust " for his father. after the estates of the father were sequestrated. In a question between the son's trustee and the father's trustee the latter maintained that the shares were truly the father's and held in trust by the son, and that the letter by the son above mentioned was proof by writ to that effect. Held-on consideration of a proof, in which the evidence of the son was that the shares were his own property, and not held by him in trust for his father, and that the letter was written by him in ignorance of the legal effect of the language used in it-that the father's trustee had failed to prove that the shares were the father's, and that the son's trustee was entitled to delivery of the share certificate.

Observations (per Lord Rutherfurd Clark and Lord M'Laren) on the case of Matthew's Trustees v. Matthew, June 28, 1867, 5 Macph. 957.

James Bell, iron merchant, Coatbridge, being insolvent, granted on 15th March 1884 a trust

deed for behoof of his creditors, in favour of John Wallace, accountant, Coatbridge.

The estates of Edward Mather Bell, tiuplate manufacturer, Coatbridge, father of James Bell, were sequestrated in bankruptcy in June 1884, and Robert Sharp, iron merchant, Coatbridge, was appointed trustee thereon.

At the date of his granting the trust-deed James Bell's name stood on the register of the Coatbridge Tinplate Works (Limited) as owner of forty shares in the company. Those shares had been transferred to him on December 22, 1876, by the trustees of a Mr Campbell deceased. The transfer bore that the granters, "in consideration of the sum of £2625 sterling, paid to us as trustees foresaid, by James Bell, Esquire, residing at Cuparhead House, Coatbridge, do hereby transfer to the said James Bell the shares numbered 21 to 36, 331 to 342, and 403 to 414, all inclusive "[being those here in question], "standing in our names as trustees foresaid in the books of the Coatbridge Tinplate Works Company, Limited, to hold unto the said James Bell, his executors, administrators, and assigns, subject to the several conditions on which we held the same at the time of the execution hereof."

The certificate for those shares was dated December 29, 1876, and was in name of James Bell.

At the date of Edward Mather Bell's sequestration this share certificate in name of his son James Bell was in his (Edward Mather Bell's) possession and custody, into which it had been put from the time when the shares were transferred to James Bell. At Edward Mather Bell's sequestration it was taken possession of by Sharp as his trustee.

Wallace, as James Bell's trustee, raised the present action in the Sheriff Court of Lanarkshire at Airdrie against Sharp, as Edward Mather Bell's trustee, for delivery of the share certificate.

He averred that James Bell was the owner of the shares enumerated in the certificate, and that the certificate had been held by Edward Mather Bell on James Bell's behalf, and that he, as his trustee, was in right of the shares and entitled to possession of the certificate.

The defender denied that James Bell was the owner of the shares, and averred that they were bought and paid for by Edward Mather Bell and put by him in his son's name in trust for himself and for the purpose of enabling James Bell to attend and vote at the meetings of the company; that the transfer to James Bell was gratuitous.

The pursuer pleaded that he being, as James Bell's trustee, in right of the shares, was entitled to delivery of the certificate.

The defender pleaded: - "(2) The shares having been placed in name of James Bell in trust for the bankrupt, the defender is entitled to absolvitor. (4) The transfer to the said James Bell being a gratuitous alienation to a conjunct and confident person in defraud of prior creditors, is null and void under the Act 1621, c. 18. The said shares having been bought and paid for by the bankrupt, and not having been validly or irredeemably conveyed away by him, form part of his estate, and now belong to and are vested in the defender as trustee thereon in virtue of the Act and warrant in his favour."

(5)

The defender produced the following letter by James Bell to Mr Wyllie Guild, C.A., who