Scottish Court of Session Decisions

“Gentlemen,—You are hereby requested to take possession of and sell the whole of my household furniture and plenishing in the cottage occupied by me at Campsie Junction, called Glen Bank or Holly Lodge. You are to use your discretion whether to make the sale at the cottage or to remove the articles and sell them in Glasgow: and I request and authorise you to pay over the free proceeds of the sale to Mr John Finlay, ironmonger, Glasgow.”

This letter was given by Metcalf to Finlay, and by him delivered to Hutchison & Dixon, who sold the furniture in terms of the letter. Mackenzie & Co.,arrestingcreditors of Metcalf, now brought this action of multiplepoinding, in name of Hutchison & Dixon, the fund in medio being the sum realised by the sale of the furniture, and the claimants being Finlay and also certain creditors of Metcalf, besides Mackenzie & Co., who had used arrestments in the hands of the holders of the fund. The Sheritf (BELL) held that as the letter in favour of Finlay was admittedly granted for onerous considerations, and there was no proof that at the date of the letter Metcalf was notour bankrupt, or in such circumstances as to prevent him from granting the letter, so soon as Hutchison & Dixon took possession of the furniture Metcalf ceased to have any control over it, and the money obtained by the sale was held by Hutchison & Dixon for Finlay, and not for Metcalf; that the arrestments were therefore inept; and that, even supposing Finlay had no vested right in the furniture and value, the arrestments were worthless, the proper diligence in the circumstances being poinding; and preferring Finlay for the amount of his claim.

Mackenzie & Co. advocated.

Young and Shand for advocators.

Clark and R. V. Campbell for respondents.

The Court, while of opinion that the Sheriff had gone wrong in holding that in the circumstances poinding was the proper diligence instead of arrestment, came substantially to the same result as that expressed in the Sheriff's judgment.