John Gordon Merchant in Rotterdam, and his Factor v. Robert Manderston Merchant in Edinburgh
1724.
June10.&
23. Case No. No 46.
A poinding was stopped by another creditor producing a disposition to the goods, although remaining in debtor's possession.
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Mr Gordon being a creditor of Belsches of Tofts, attempted to poind the household plenishing and other moveable effects in the possession of his debtor; but the messenger was stopt by one Craw, as factor for Manderston, who showed a general disposition from Tofts to Mr Manderston of all his moveable goods, dated anno 1714.
Mr Gordon insisted against Manderston for payment of his debt, upon the following ground, That the disposition was simulate and fraudulent, Tofts the common debtor having continued in the possession from the year 1714 to the time of the poinding in April 1723.
There was an act before answer pronounced; and at advising the proof it was pleaded for the pursuer. That the defender ought to be liable for his debt, it being established by a number of decisions, that such was the effect of stopping of poindings, on pretence of dispositions retenta possessione, and that because of the presumed fraud in the disponee, which subjects him to payment of damages to the person defrauded.
It was answered for the defender, That though such might be the effect of stopping of poindings upon gratuitous and simulate dispositions, yet where a disposition was granted for an onerous cause, as in the present case, either for payment or security of a just debt, no fraud could be presumed from the disponee's indulgence to the debtor in allowing him to possess; and the disponees afterwards insisting on his claim of property against a creditor who would poind these goods, could not, by any law known with us, subject him to the payment of that creditor's debt. 2do, The corns of the crop 1722, and the young cattle could not fall under the defender's disposition in the year 1714. 3tio, The Lord's factor, who appeared at the same time with a design to stop the poinding upon account of the hypothec, did thereafter seize and dispose of these very goods; and therefore the defender could not be liable for them. 4to, The defender's factor had no special orders to stop the poinding, or produce the disposition.
It was replied for the pursuer, That whether the corns or young cattle fell under the defender's disposition or not, yet he was liable, because, under pretence of his disposition, he screened these goods from poinding, and the Lord's factor did not interpose to stop the poinding on account of the hypothec. And lastly, Mr Craw, besides his having a factory, was entrusted with the principal disposition, which was sufficient to presume a mandate; and therefore must subject the defender.
The Lords found the defender liable, by production of the disposition libelled, granted by the common debtor to him; and found, that the messenger having proceeded to poind and appreciate before the defender produced the disposition, that he was only liable for the value of the goods poinded and appretiated: But found the producing of the said disposition could not have barred the messenger from poinding the corns and hay which was of crop 1722, the disposition being of date 1714; and repelled the defence founded upon the master's hypothec.
Act. Ja. Graham sen. & P. Grant.Alt. Ro. Dundas Advocatus.Reporter, Lord Milton, Probationer.Clerk, Justice.
1724. June 23.—Mr Manderston reclaimed against the interlocutor pronounced the 10th of June last, and contended, That it appeared from the proof that his factor had no design to stop the poinding; on the contrary, that it was all a plain contrivance of the pursuer's, by a simulate poinding, to ensnare the factor: For, 1mo, Craw the factor came not until he was sent for; 2do, He did not produce the disposition until it was asked for by the pursuer and his factor, and then only gave a copy of it, at the desire of the notary; 3tio, He refused to take instruments upon producing the disposition; 4to, He did not compear at the poinding, but only met with the messenger in a public house; 5to, Several of the witnesses concurred, that the pursuer's instrument upon the pretended stopping of the poinding, was taken after the factor went out of the room; so that he had no opportunity to answer it; 6to, It was proven by concurring testimonies, that the pursuer told the Lady Tofts to take her plenishing out of the way, for he had no design to poind it; from which it would appear that his design of poinding was all a sham.
It was answered for the pursuers, 1mo, That the factor had been sent for by the Lady Tofts, which shewed that he acted in concert with her. 2do, Craw said, That he had in his custody a disposition from Tofts to Manderston of his moveables, which gave occasion for the pursuer's asking for it; and Craw said, it was sufficient to stop the poinding. 3tio, His refusing to take instruments was only to save charges, because he might think that the producing of the disposition was sufficient. 4to, The parties were about the poinding when the disposition was produced; for the goods were in the hands of the apprisers, and the messenger and notary were extending the schedules. 5to, Two witnesses deponed that Craw was present when the instrument was taken. 6to, The witnesses, who swore concerning the pursuer's desiring the Lady Tofts to put her furniture out of the way, say only, That he desired her to put away any thing in the house that was necessary; which must be understood to be any small things that were necessary for her subsistence.
The Lords found, That Craw, the defender's factor, not having voluntarily produced the disposition, but that the same was produced at the pursuer's factor's desire, and when produced, Craw refused to take instruments thereupon; therefore found, That neither Manderston the constituent, nor Craw the factor, were liable for any of the sums acclaimed.
Act. Ja. Graham & Pat. Grant.Alt. Ro. Dundas Advocatus.Clerk, Justice.
Edgar, p. 56.
