Scottish Court of Session Decisions

This was an action of damages for wrongful poinding of goods belonging to the pursuer, for payment of a debt not due by him, but by his father.

The pursuer's allegations were as follows:—On 22d September 1865, he had purchased from his father, who was tenant of a farm at Balerno, certain articles of farm stock and produce and household furniture, and he produced a deed of assignation thereto, executed by his father on that date, and bearing that the price, £398, had been “now and formerly advanced and paid.” On 16th September 1865, six days before the assignation, the defender had charged the pursuer's father to pay £120, 16s., in virtue of an extract registered protest on a bill accepted by him; and on 16th October 1865, notwithstanding the assignation to the pursuer, he caused a portion of the effects thereby assigned to be poinded for payment. On 21st October he obtained a warrant to sell the poinded effects on 3d November. On 2d November the pursuer applied for and obtained from the Lord Ordinary an interdict of the sale on caution, which he was unable to find. There was no averment that a sale had taken place, but it appeared in the course of the discussion that it had. The effects assigned to the pursuer had never been delivered to him, but he founded upon section 1of the Mercantile Law Amendment Act, 19 and 20 Vict., c. 60, which enacts that “where goods have been sold, but the same have not been delivered to the purchaser, and have been allowed to remain in the custody of the seller, it shall not be competent for any creditor of such seller, after the date of such sale, to attach such goods as belonging to the seller, by any process of law, including sequestration, to the effect of preventing the purchaser, or others in his right, from enforcing delivery of the same.”

The defender pleaded that the action was irrelevant, and averred that the pretended assignation founded on was a collusive device betwixt the pursuer and his father to defeat the diligence of the latter's creditors, and that no bona fide sale ever took place.

The pursuer proposed an issue, which the Lord Ordinary (Barcaple) reported, with the following

“ Note.—The defender maintains, on grounds which the Lord Ordinary inclines to think well founded, that the pursuer has not set forth a relevant case for damages, and is not entitled to an issue. The case of the pursuer is that the defender having given a charge to the pursuer's father for a debt due to him, the document printed in the appendix was executed on the sixth day after the charge. It bears to constitute a sale and conveyance by the pursuer's father to the pursuer of the farm stock, implements, and household furniture there enumerated, on the farm occupied by the former. Though this document was exhibited to the officer, and brought to the knowledge of the defender, the defender proceeded to poind the

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goods, and afterwards obtained a warrant to sell them. It is not averred that they were sold.

The pursuer founds upon the 1st section of the Mercantile Amendment Act 19 and 20 Vict., c. 60, but it does not enact that a sale without delivery passes the property of the goods sold ( Wyper v. Harvey, 23 D. 606), nor does it prohibit the attachment of such goods by the creditors of the seller. It only makes it incompetent for him to attach them ‘to the effect of preventing the purchaser, or others in his right, from enforcing delivery of the same.’ This is not in terms a prohibition of the use of diligence. It is merely a limitation of its effects, leaving it, as the Lord Ordinary is disposed to think, to the creditor to attach the goods of his debtor, in his debtor's possession, valeat quantum, and subject to the preferable right of a prior bona fide purchaser. There may be a question as to the validity and bona fide character of the alleged sale, and in that case the poinding creditor has an interest to secure an immediate preference over other creditors, and to prevent his debtor putting away the goods. In the case of Wyper, above referred to, it was held that, notwithstanding a bona fide sale, the seller's right of retention defeated the right of the bankrupt purchaser and his creditors, so that the goods remained with the seller, subject, it must be presumed, to the effect of any diligence used by his creditors.

The defender further objects that, as it is not averred that the goods were sold, there has been no damage to the pursuer. The Lord Ordinary is disposed to think that this also is a good objection. If no nexus, hr none effectual against the pursuer, has been laidoupon the goods, he has suffered no loss by the ponding. The case is different from that of the oiwner of goods improperly poinded, whose right of property has been invaded, and possibly his credit seriously injured.”

W. N. M'Laren, for the pursuer — According to a correct reading of the 1st section of the Mercantile Law Act, it was incompetent for a creditor of the seller, when goods had been sold but not delivered to the purchaser, to poind these goods. It was the intention of the Legislature that the purchaser should have it in his power to obtain delivery of the goods at his own hand, and it prohibited the seller's creditors from taking any step which should prevent him from doing so. In the present case it is averred that the respondent, in the full knowledge of the deed of sale, poinded the goods purchased by the pursuer, and so prevented the pursuer from taking delivery at his own hand, in consequence of which he was forced to apply for delivery to the Court by a note of suspension and interdict, which he did in November following. The poinded goods were ultimately sold by the defender, but as the pursuer was not aware of that fact until after the record in the present action had been closed, there was nothing said about that circumstance on record. The record, however, contains an averment that, in consequence of the illegal poinding, the pursuer was unable to obtain delivery of the goods until after he had obtained his note of suspension and interdict passed on caution. The pursuer claims reparation for the loss he has suffered in consequence of his not being able to obtain possession of his goods before. The circumstance as to the deed of sale having been granted by a father to his son only six days after the father had been charged by the defender for payment of the debt for which the poinding was executed, though suspicious, was not sufficient per se to establish that the deed of sale was a fraudulent transaction.

Johnstone, is for the defender, replied-There no averment that the goods were sold. Whatever might have been the result had there been a bona fide sale, the circumstances of the present case clearly showed the transaction to be collusive. The 1st section of the Mercantile Law Amendment Act does not render it illegal for a creditor of the seller to poind, particularly as the seller's creditors have an interest in doing so, in order to prevent the goods, in the event of the sale being collusive, from being put out of the way by the purchaser after he has obtained delivery.