Scottish Court of Session Decisions

This was an action at the instance of Mrs Millar to recover the sum of £50, said to be due to her as the price of certain articles of furniture which she had sold to the defenders, who were auctioneers in Edinburgh. The defence to the action was, that the defenders had been interpelled from making payment by other parties in the following circumstances:—They alleged that immediately after they got delivery of the articles in question, they ascertained that they formed the greater portion of furniture bought by the pursuer's son from Messrs Finlay & Son, cabinet makers, a few days before, at the price of £156, 6s. 7d., and for which he had granted a promissory-note payable one month after date.

They alleged further:—“Messrs Finlay & Son claimed the price of the articles sold by the pursuer, on the ground inter alia that the price was due to their debtor to whom the articles of furniture belonged. On 8th April 1870 Messrs Finlay & Son protested the said promissory-note, and in virtue of a warrant to arrest contained in the extract registered protest of that date, arrested in the hands of the defenders the sum of £200 sterling, less or more, due and addebted by them to the said William Waddell Millar, or to any other person or persons for his use and behoof. The object and effect of this arrestment was to attach in the defenders’ hands the sum now sued for. On 11th April 1870 the estates of the said William Waddell Millar were sequestrated in terms of the ‘Bankruptcy (Scotland) Act 1856,’ and at the meeting for the election of a trustee Mr James Hogarth Balgarnie, C.A., Edinburgh, was elected trustee, and he has since been confirmed by the Sheriff of Edinburgh. On 27th April current, Mr James Knox Crawford, S.S.C., as agent for Mr Balgarnie, wrote the defenders, intimating that he, Mr Balgarnie, as trustee foresaid, claimed the price of the furniture from the defenders. Messrs Finlay and Mr Balgarnie both maintain that the furniture did not belong to the pursuer, but to her son, and that no change of possession had taken place to the effect of transferring the property from him to the pursuer. The defenders

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are quite prepared to pay over the sum due by them to such parties as may be found entitled thereto; and with that view they have brought an action of multiplepoinding, convening all parties interested, that their respective claims to the sum in the defenders’ hands may be decided.”

The Lord Ordinary ( Ormidale) pronounced this interlocutor and note:—

“ Edinburgh, 22 d October 1870.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, repels the defences, and decerns against the defenders in terms of the conclusions of the summons; Finds the pursuer entitled to expenses, allows her to lodge an account thereof, and remits it, when lodged, to the auditor to tax and report.

Note.—This being an action for the price of certain furniture sold and delivered by the pursuer to the defenders; and as the defenders admit the sale and delivery, as also the price, and that it is still resting owing, the Lord Ordinary has seen no sufficient ground for further procedure, or for not at once pronouncing decree in the pursuer's favour, in terms of the conclusions of the summons. The only reason that was urged at the debate by the defenders against this course was founded on the multiplepoinding referred to in the defences as being about to be brought, and which was afterwards instituted. But as the Lord Ordinary has, of the same date as that of the preceding interlocutor, dismissed the multiplepoinding as incompetent, all ground of defence to the present action has been removed. It will be observed that the arrestment said to have been used in the defenders’ hands at the instance of Finlay & Son, and the intimation of claim said to have been made by Balgarnie, relate not to the present or any debt due by the defenders to the pursuer Mrs Millar, but to a debt said to be due by them to her son. And it will also be noticed that the defenders do not even aver that the furniture referred to did not belong to Mrs Millar. They merely say that Finlay & Son and Mr Balgarnie have made a statement to that effect. But no steps have been taken by either of those parties for the purpose of establishing a claim either to the furniture or its price; and the multiplepoinding being now out of Court, there is nothing to interpose between the pursuer and immediate decree in her favour.”

The defenders reclaimed.

M'Laren, for them, quite relied on Bell's Com., vol. ii, p. 297.

Strachan and Black, in answer, were not called on.