A summary application by the seller for, the price of good which had been delivered immediately before bankruptcy, on the head of fraud, not competent.
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William Gray at Tinwald Mains, (28th September, 1803,) agreed to sell 40 bullocks, at the price of £.630, to John Campbell in Barncrosh. The cattle were, (3d October,) delivered, and an obligation received to pay the price on demand. The cattle were sent to England.
A sequestration of his effects was granted, (October 10th, 1803.)
Gray insisted that the whole transaction might be set aside at common law on the head of fraud; but as it appeared improper to apply to the Judge-Ordinary to obtain re-delivery of the cattle, as it was uncertain whether they had reached England, and as it was impossible to apply to the interim factor or trustee, as no meeting of creditors had taken place under the sequestration, and no manager of any description had been chosen, the most regular and most prompt method seemed to be, to make an application to the Lord Ordinary on the bills for an interdict, prohibiting the sale of the cattle, until it should be ascertained to whom they belonged.
A petition to this effect was presented, and the interdict granted; but, in the mean time, the cattle having reached England, Gray (October 12.) authorised a sale of them, under protest, that the price should not be intromitted with by the creditors. A competition for the price then became the question between John Napier, trustee for Campbell's creditors, and the seller. A summary application was made to the Court, praying “their Lordships to remit to the Lord Ordinary to investigate the circumstances of this case, and, on his Lordship's report, to grant warrant, ordaining the said John Napier to pay over to the petitioner the sum of £.630, being the value of the cattle delivered over to the late James Campbell, junior, with interest from 3d October last.” This application was supported by a reference to sect. 35. of the bankrupt act, which, in requiring that the trustee shall first determine upon disputed claims, and that the Court shall review his sentence, it was said, applied only to the case where the party claiming makes his demand as a creditor; but the petitioner claims, as his exclusive property, what had never belonged to the bankrupt, over which therefore the trustee can have no controul, and therefore no power of deciding whether it belong to one party or another.
It appeared to the Court, however, that a formal action of reduction, on the head of fraud, was the only competent shape in which the merits of this question could be tried.
The petition was (December 22d, 1803,) refused.
For petitioner, W. Erskine.Agent, Alex. Young, W. S.Clerk, Pringle.
Fac. Coll. No. 131. p. 289.
