Scottish Court of Session Decisions

The advocator, Railton, as mandatory for one Pullman, merchant in London, creditor, by bill, of Henry Jacques, shoemaker in Glasgow, executed a poinding of Jacques' effects, which were thereafter sold by him under warrant of the Sheriff of Lanarkshire, of date 6th February, 1833. The sale was approved of on the 23d of the same month, and, on the 23d May following, the respondent, John Jacques of London, also a creditor of Henry Jacques, and his mandatories, raised a summons before the Sheriff against Railton, setting forth, that Henry Jacques had been rendered bankrupt on the 7th February, and concluding to have allotted to him, in terms of the 54 Geo. III. c. 137, a proportion effeiring to his debt of the proceeds of the poinded goods, which had been received by Railton. Railton defended on various grounds, to which it is not necessary specially to advert, the principal being, that, as a mere mandatory, be was not liable to be called in such action, and that the diligence whereby Henry Jacques was alleged to have been made bankrupt was irregular. A record was made up by condescendence and answers, and the Sheriff having repelled the defences, and found John Jacques entitled to a share of the proceeds of the poinded effects, Railton brought an advocation, stating, as a reason of advocation, that the record had not been properly made up in the Court below. A new record was accordingly allowed, and, in the condescendence thereupon given in by Railton, it was stated, that Henry Jacques had been rendered bankrupt by a prior diligence, so that, calculating from its date, the respondent's summons was beyond the four months allowed by the act of Parliament for participation. On being satisfied that this was the case, the respondents declined giving in answers, and consented to the Sheriff's interlocutor being altered.

The Lord Ordinary accordingly advocated the cause, and recalled the interlocutor, but found no expenses due to either party.