Mr Malcolm M'Gibben v. The Managers of the Woollen Manufactory at Newmills
Date: 14 July 1710 Case No. No 4.
A bill ordering money to be paid out of a specified fund, accepted, “when the fund comes to hand,” found effectual, and preferable to a posterior arrestment of the same fund.
Click here to view a pdf copy of this documet : PDF Copy
In the competition between Mr Malcolm M'Gibben and the Managers of the Woollen Manufactory at Newmills, for sums due to Major General M'Cartney, out of the Equivalent; M'Gibben founded on a bill or precept drawn by the Major-General, 6th August 1700, upon James Ramsay, then paymaster of the regiment of Foot Guards, “ordering him to pay thirty-three pound Sterling out of his clearings of the months of July, August, September, October, November, and December 1698, in full of his and Hautboies dues from the said regiment, when received.” On which bill Mr Ramsay wrote, “Accepts when the clearance comes to my hand;” and it was intimated to the Commissioners of the Equivalent, 24th June 1707. The Managers of the Manufactory at Newmills, (who had used arrestment in the hands of the Commissioners, upon a registrated bond granted to them by the said Major-General for L. 89: 18:4 Sterling) claimed preference to M'Gibben, in respect their debt was unexceptionable; whereas his precept was conditional, payable out of a certain fund when received by Mr Ramsay; and the condition never being purified, could not be considered as an effectual conveyance, albeit it is a good instruction of the debt against the drawer: For the order to pay out of the clearance of such months, was intended to point out the fund of the creditor's payment, and to free the acceptor from being liable to pay out of any other of the drawer's effects.
Answered for M'Gibben: The precept does constitute a pure and simple debt against the drawer, though there be a condition adjected to the acceptor's payment. 2do, Its being payable out of a particular fund, implies a virtual assignation thereto; for albeit the bill, in order to M'Gibben's more conveniency, was made payable by Mr Ramsay when the fund came to his hand; yet the fund itself, though never received by him, must still be liable to that debt. And the bill intimated to the Commissioners of the Equivalent, long before the competitor's arrestment, carries right to as much of the clearance in their hands, as will satisfy the same; just as if the Major-General had assigned it to M'Gibben, and for his better payment ordered Mr Ramsay to pay the same when received; and therefore M'Gibben ought to be preferred.
The Lords preferred M'Gibben, the creditor in the bill.
