Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

M'Kenzie of Redcastle
v.
-

Date: 17 November 1761

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A Gentleman in the country gave a commission to a certain person to sell some victual for him, which accordingly he did, and took the bills for the price in his own name. After that a creditor of the gentleman arrested both in the hands of the factor, who had sold the victual, and of the buyer who had granted bills to him. In the forthcoming the factor appeared and pleaded that he must have retention, out of the sums in these bills, of a debt which the gentleman owed him ; but it carried, by a division of eight to six, that he had no retention. It was admitted, that if the money had been paid to him he would have had retention, even against the arrester; but, as the money was not paid, the majority of the Lords thought there was no subject of retention, because the money was truly due to the constituent, so that if he had sued the debtors in the bills he could have recovered payment from them in competition with the factor; therefore the factor had nothing in his person that could be the subject of retention, neither the money nor the nomen ; and, besides, Lord Alemore observed, that he had no warrant from his constituent to take the bills in his own name: perhaps, indeed, he had a power to do so, but, by doing so, he could not have a power to create a security to himself, which it does not appear his constituent had any intention to give him.

24th February 1762,—This decision altered unanimously.