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The effects of Drummond, a dealer in grain, were sequestrated in virtue of the bankrupt statutes.
David Walker afterwards preferred a petition to the Court of Session, setting forth, That he had consigned a quantity of wheat belonging to him, in the hands of the bankrupt, who had made another consignment of it to a third party, from whom the factor on the sequestrated estate had demanded it, in behalf of the creditors in general.
He therefore prayed for a warrant to serve the petition on the factor; and that, on the particulars in it being proved, the second consignees might be ordained to deliver the wheat to the petitioner.
The Court considered the application as incompetent. When, as in the case of the creditors of Kemp*, subjects have once been in the possession of a factor appointed by the Court, an order for restitution may, on cause shown, be summarily granted in favour of the rightful owner. But this was here impracticable, as the wheat still remained in the custody of a third party, who could not be brought in-to Court, without the usual forms and induciæ of citation.
“The Lords refused the petition.”
For the petitioner, Dean of Faculty.
Fol. Dic. v. 4. p. 310. Fac. Coll. No. 280. p. 431.
