Greenshiels — Petition, 19 Nov 1766

Humbly sheweth T H A T your Petitioners having become joint Petitioners withJohn Glen of Assloss, late Merchant in G la sg ow and theTrustees for his. Creditors, in a Petition reclaiming against. a former Interlocutor of your Lordships, in the Compe­ tition between the said John Glen and the Trustees for his Creditors on the one Part; and certain other Creditors of Dav id Macfarlane, late Merchant in St Christophers, with respect to a Parcel of Sugars, the Property of the said David Macfarlane, consigncd to James King, his common Agent at Port-Glasgow, and arrested by sundry of his Creditors. And faid Petition coming to be advised by your Lord* ships upon the 9th August, being the last Sederunt-day of last Sum- mer-session, your Lordships were pleased, by Interlocutor of that Date, to refuse the Desire of the Petition; and to adhere to the In­ terlocutor reclaimed against. These Interlocutors are final, so far as concerns the Interest o f Glen, and the Trustees for his Creditors: And your Petitioners have been informed, that certain equitable Considerations, peculiar to Glen himself had considerable Weight with your Lordships in pro­ nouncing these Interlocutors; particularly that, by the Injunctions ‘; A which,.-7- November 19 1766,., » • ~ * f.,;, i * EjS-f? 0. c G t * * * r +' • r Unto the R ig h t Honourable the L ords o f Council and Session, T H E P E T I T I O N- • 5 ', 2 f ■ r r '• • 1 •; ♦- K 4 • f * '- + i* ' '- ^ h t O f^ * > ••.r V... I f:., Meff. Greenshiels and W ardrope, Merchants in Glasgow G which Macfarlane transmitted to his Correspondent King reflecting the Disposal of these Sugars, and the Application of the Price in Payment to sundry of his Creditors, of the Sums to them severally allotted, a rateable Proportion was allotted for the Payment of the Debt due to Glen; so that, when, by means of his Arrestment, he attempted to establish a Preference to himself to the Extent of his whole Debt, and to withdraw from these other Creditors the Shares allotted to them, he was in so far catching at an undue Advan­ tage, which ought not to be allowed. What Influence this Circumstance may have had in obtaining these Interlocutors, the Petitioners will not pretend to say, as they were not Parties to the former Proceedings: But as they stand upon a very different f ooting with Glen, they humbly hope for your Lordships Forgiveness in submitting this Question, so far as their Interest goes, to your Lordships Review, as they have no other Pro- spect of recovering one Farthing of their Money in any other Shape, M a c f a r l a n e appears to have been in labouring Circumstances for several Years, and now, as is informed, insolvent, having left St Christopher's, and settled in the island of St Croix, which belongs to the Crown of Denmark, and consequently is without the Reach of the Laws of this Country. The Fact upon wh ich the Question arises, is extremely short. David Macf arlane was owing coniderable Sums to several of his Creditors in this Country* and amongst these to your Petitioners, in the Sum of L. 1 Sterling: And if fair Things had been intended, any Remittances he was capable to make, ought to have been ap­ plied proportionally to the Payment of his whole Creditors. But it appears, that in September 1764, being possessed of 7 H ogsheads of Sugar, and having a joint Concern with John Tennent in a smaller Parcel, he put them aboard the Ship Triton, whereof the 70 Hogsheads, upon his own Risk and Account solely, and con- signed the same to James King, his ordinary Agent and Correspon- dent at P o r t- G l a s g o w. This Consignment was accompanied by a Letter, of this Date, from Macfarlane to King, of the following Tenor: “ St Croix, 26th September 1764. Mr James King Senior. Sir, Referring you to my other Letters by this Vessel, this only serves to inclose vour Invoice and Bill of Loading for 70 Hogsheads of Sugar, shipped vou by the Triton, Captain Towers, on my own private Account; Cost, with all Charges here, L. 15:26 Currency, which I wish s a f e home, and to a good Market. They are all purchased with cash f^ j 4. * Cash, and I am persuaded will turn out to Advantage. I have also wrote to several People in Glasgow ndeir them to ap­ ply to you for the several Sums of Money, which you will see by the particular List at the Foot of this Letter, which amounts in all to L. THHA yT ou r rPe d. Sterling, which is more than my Su­ gars can neat; but whatever they may be short, you will please take it out of the Proceeds of Mr Tennent’s and my joint Sugars, shipped you by this Vessel, and our Interest in the Schooner; but if possible you could advance that Money for me for a few Months, I would make you sufficient Remittances to reimburse you before next Spring, as we want what Money may be in your Hands, after paying the Bills Mr Tennent drew on you, to be re­ mitted to Meff. Fordyce and Grant of London; therefore hope you will not think much to advance this little Money for me, as you must expect at some time to be something in Advance for your Correspondents, who you may be safe with. I have by this Vessel got m y Friends, Alexander Moir and Charles Arthur, Esquires, of this Island, to consign you 34 Hogsheads Sugar on their own Ac­ counts; this is only to try the Market, and hope you will be able to turn them out to Advantage, as on these we ship this Year ourselves, will depend our Remittances next y ear, though I hope to send you double the Quantity next Year that I have done this, if I have any Encouragement from you, and hope our Correspondence may turn out to our mutual Advantage. I owed some of the People, whose Names you have on the other Side, more Money than l have desired you to pay, but they may expect to be fully paid when I go home myself, which l hope will be next April or May. Indeed I could wish it might be con­ venient for you to pay them all off, as I would much rather owe the Money all to one Man than to three or four, though it is what I cannot expect of you. Indeed I expecte d the greatest Part of them was paid by Mr Hutcheson, till within this very short time. It is true, he returned me some Bills Protested, which I sent him for that purpose. On the whole, I must beg you to make them as easy as possible, as they may depend that their Money shall be paid very soon. And I shall take it kind in you to grant those People who I have desired you to pay, Acceptance at sixty or ninety Days, ju st as you think you can comply, and send me Copies of their Receipts by very first Opportunity ” And as the List referred to in said Letter, contains the Names of certain Credi­ tors- tors, and the Sums due to them severally, and the Sums which King was desired to pay to each of them, he concludes the Letter, with a Postscript in these Words: “Whatever my Sugars may fall s hort of the above Sum of L. 800: 18: 3 3/4, if it should not be convenient to advance it for me, please to pay it out of the Effects of Mr John Tent and Self in your Hand. That page in the a fo resa id Letter, which bears his having wrote to several People in Glasgow, and desired them to apply to Mr King for the several Sums destined for them, was no further true, than as in Fact it appears that he had wrote two Letters, the one to Glen, and the other to Meff. Scotand B row n, informing them, that he had wrote to King to pay them L. 100 Sterling; and that the balance of their Account should be paid in a little Time. No such Intelligence appears, from any Thing yet produced, to have been given to any of the other Creditors contained in said L ist: And even in the two Letters above mentioned, no Notice there is taken of the Consignment of the above Sugars, or out of what Fund their partial Payment were meant to be made. All that these two particular Creditors were given to understand, was, that they were to receive a partial Payment from King, and that the Remain­ der of their Debts would be shortly paid. Upon the Ship’s Arrival in the Isle of Man, in December 1764, George Brown, Merchant in Glasgow, acquainted Mr K in g there­ of. In answer to which, Mr King wrote Brown, informing, that he had received the Invoice and Bill of Loading for 70 Hogsheads Sugar, shipped for David Macfarlane, the Proceeds of which he had Orders to apply amongft the Creditors named in a Lift which had been sent him, of which Mr Brown was one; and which he promi­ sed to do as loon as in Cash. And this Letter is the only one that King wrote to any of the Creditors, either before or after the Arri­ val of the Sugars. Upon the Vessel's Arrival in the Harbour of Port-Glasgow, seve­ ral of Macfarlane's Creditors, some of them of the Number of those who were contained in the aforesaid List, particularly John Glen, and others not contained in said List, of which Number were your Petitioners, used Arrestments in the Hands of the said James K ing: Glen pursued a Forthcoming, and King raised a Multiple-poinding; whereupon a Competition having ensued between the Trustees of John Glen's Creditors, and some of the Creditors in the aforesaid List, the Lord Auchinleck Ordinary pronounced the following Inter­ locutor: locutor: “ Having confidered the Missive produced for Meff. Stark, Cross, and Company, with the Reasons for preferring them in consequence thereof, and the Memorial for John Glens Trustees, in answer to these Reasons, finds, Glen's Trustees having habile- ly arrested the common Debtor’s Effects in Mr King's Hands, be­ fore he had made Payment of the Money directed, he Mr King remained accountable to the common Debtor, and the Effects remained the Property of the common Debtor, who had it in his Power, if he pleafed, to countermand the Order given; and therefore prefers the Trustees for Glen and Company; and de­ cerns in the Preference, and against the Raifer of the Multiple­ poinding ” But upon advisin g a Representation for the Creditors in the L ist, and Answers for the T rustees of Glen's Creditors, his Lordship pronoun- ced this other Interlocutor: “Having again considered this Repre j sentation, with the Answers, finds the Goods consigned with King for Behoof of his Creditors specified in the Letter, and to whom he notified the said Consignation, could not be habilely arrest- ed, in Prejudice of the Persons in whose favour the Consignment was made.” Glen' Trustees preferred a reclaiming Petition: Upon advisin g which, with the Answers, your Lordships, by Interlocutor of this Date, adhered to the Lord Ordinary’s Interlocutor. A second reclaiming Petition was presented, in name of Glen and the Trustees, for his Creditors; and in which your Petitioners joined; though there was this material Difference between their Case and Glen's, that Glen being contained in the aforesaid List, would be intitled to a rateable Proportion of the Money, though denied the Benefit of his Arrestment; whereas your Petitioners not being contained in laid List, though equally onerous as any of the Creditors therein mentioned, if they are not allowed the Benefit of their Arrestment, in whole or in part, they must be totally cut out, as they have not the Prospect of recovering one Penny from Macfarlane, but by means of the Arrestment already used. And, as an Introduction to the Argument, which they are hum­ bly to off er to your Lordships Consideration, upon the Merits of the Question itself, they beg Liberty to remark one material Fact sup- posed by the Lord Ordinary’s Interlocutor, 6th March 1766; and as such Part o f the ratio decidendi, and which of consequence must also affect your Lordships Interlocutor, adhering to that of the Lord Ordinary, viz. that Macf arlane. had notified the Con- 13 signation:signation to these his Creditors in the List.—-What Influence that Circumstance ought to have upon the Point of Law, allowing the Fact to be as there suppofed, is immaterial; because there is not the Grue of Evidence, that any such Notice was given to any of these Creditors, prior to your Petitioners Arrestment, excepting those in the Manner already mentioned. So that whatever Prefer­ ence these particular Creditors, to whom such Notice was given, may, by means thereof, be intitled to, it is impossible that the o- ther Creditors, to whom no such Notice was given, can plead any Advantage therefrom... And therefore, in the Review of this Interlocutor, the Petitioners will, in the first place, consider the Question, upon Supposition that no such Notice had been given to any of the Creditors, prior to their Arrestm ent; and, in the next place, they will consider what Effect that Notice ought to have in favour of the particular Cre­ ditor, to whom the Notice is said to have been given. It has been already noticed, that these Sugars, the Property of Macfarlane, were shipped upon his Risk and Account, consigned to King, his ordinary Agent and Correspondent in this Country. So that if any Fatality had befallen them, they must have been lost to Macfarlane. The Property of the Sugars neither was transferred, nor meant to be transferred to the Creditors in the List. So that they remained, as formerly, the Property of Macfarlane, of which it seems a necessary consequence, that they behoved to be attach­ able by the Diligence of his Creditors. The Letter which accompanied the Sugars, contained an Order or Mandate to King, to dispose of the Sugars for Macfarlane's Ac­ count; and out of the Price or Proceeds thereof, and so far as the Price should fall short, out of Monies to be advanced by K ing him- self, or if King did not choose to advance the Money, out of the Price for the smaller Parcel of Sugars, to pay certain Sums to the particular Creditors mentioned in the List. But as this Mandate or Order respecting the Application of the Price of the Sugars, did, in the Nature of Things, imply this Condi­ tion, that the Sugars came safe to King's Hands, and should be by him disposed of; both of which were inherent Qualities in the Order or Mandate; it is a clear Case, that if by any means what­ ever the Sugars did not come to King's Hands, or that he was prevented from disposing of them, whether by Accident, as sup- posing the Sugars to have suffered Shipwreck, or by Macfarlane s countermanding (6)____ countermanding the Consignment, or by the Sugars being attached and poinded by the Diligence of Creditors, the Order upon King re- specting the Application of the Price, or any Benefit that might from thence have arisen to the Creditors named in the List, must have been thereby evacuated. It is an established Principle, and which has not been disputed in the present Case, that so long as the moveable Goods of any Per* son remained his Property, and subject to his Controul. they are liable to Arrestment or Poinding, at the Suit of his Creditors; and that no intended Appropriation by the Debtor to particular Credi­ tors, either of the Goods themselves, or of the Price of them when sold, can withdraw such Goods from the Diligence of other Cre- ditors, unless the Property be actually transferred by him to those 1 particular Creditors, for the Payment of whose Debts he meant to- appropriate them. And it is upon this Principle, that an Arrest— ment. or posterior A signation not intimated, is preferable to a prior Assignation not intimated; because until Intimation is made, the Cedent is not understood to be denuded; the Property still remains- with him. To apply these Principles to the Case in hand, it will not be dis­ puted that Macfarlane notwithstanding of the aforesaid Letter to King, had Power to have recalled the Consignment to him; or allow­ ing the Consignment to stand, to revoke the Order respecting the Application or the Price, as that Order gave no jus quaesitum to the Creditors in the L ist. And your Petitioners consider it to be a clear point, that whatever Macfarlane himself could have done, his other Creditors could effectually do by means of their legal Diligence, whether before that King had actually got hold of the Sugars, or before that, by disposing of them, he was become possessed of the Price, and had applied the fame in manner directed. To illustrate this Proposition, your Petitioners will beg Liberty to* suppose, that upon the Vessel’s Arrival at the Isle of Man, or in any foreign Port, before that the Sugars had come into King's Possess- i on, certain of Macfarlane's Creditors had, by legal Diligence, ar­ rested or poinded these Goods, f or Payment of Debts due to them by Macfa rlane, it feems impossible to maintain, by any fair Argu- ment, that the e ffect of this Diligence could have been enervated by the Mandate to King, to apply the Price to any particular Purpose; because, as already said, that Order or Mandate was not only re— 'vocable by Macjarlane himself, and consequently gave no.. to the Creditors in the List, but was conditional, in case the Goods came to Kings Hands, and were by him disposed of; which Mandate therefore was not only revocable by Macfarlane, but was defeasible by the Non existence of the Condition, and by the prior Diligence of the lawful Creditors And if such must have been the Judgment of the Law, i f the Su­ gars had been arrested or poinded before they came to King's Hands, it does not occur, how his having got Possession of the Sugars be­ fore the Arrestments were used, should vary the Case, So long as the Sugars were not difposed of, they remained the Property of Macfarlane. His Letter to King neither transferred, nor was intended to transfer the Property of the Sugars to the Creditors in the List. It was out of the Price of the Sugars, when sold, that King was di­ rected to make partial Payments to sundry of Macfarlane's Creditors: And as that Order was liable to be recalled by Macfarlane, so long at least as the Sugars remained undispofed of, they would, by neces- sary Consequence, have remained so long liable to Attachment by the Creditors of Macfarlane, because the Sugars themselves still re­ mained his Property. The Sugars were in Fact arrested by your Petitioners, in the Hands of King, soon after the Ship’s Arrival at Port Glasgow, and before one Grain of them was disposed, whereby they were subject- ed to a nexus realis at the Instance of your Petitioners, who had u- sed the Arrestments. And though King did thereafter dispose of the Sugars, which he even did on Macfarlane's Account, he could not thereby prejudge your Petitioners of the Right which they had acqui­ red by their Arrestment: And as, supposing the Sugars to be still extant, your Petitioners must undoubtedly have been preferable, they cannot perceive, upon what Principle of Law or Justice they should be denied the like Preference upon the Price; or how King, by thereafter disposing of the Sugars, could deprive them of the Benefit of their Arrestments. The Sum of your Petitioners Plea upon this Point, and upon which they chiefly rest their Claim of Preference, is, that as the Property of the Sugars remained with Macfarlane at the Time their Arrestments were used, when the Sugars were yet undispofed of, the Order upon King, respecting the Application of the Price of the Sugars when sold, was- f rustrated, by the preferable Right which your Petitioners had ac- quired by their Arrestments, as effectually as it the Sugars had been. poinded; poinded; which therefore could not be disappointed by the after Sale of the Sugars. This Principle of the Law stands established in the Decisions for­ merly referred to, 21st July 1697, Inglis contra 1 6th January 1706, Lord Ross contra Gray; again in November 1732, in the Com­ petition between the Creditors of A uchterlony; and last of all, in the Question between Sir John Baird and the Creditors of Mr Hugh Murray; the Particulars of which therefore shall not be restated. But there is a remarkable Speciality attending the present Question, which distinguishes it from any of these other Cases, and places it in a much stronger Light, viz. that the Subject of this Competition is in reality the Sugars themselves, undisposed of when your Peti­ tioners Arrestment was used: And as the competing Creditors cannot pretend that they had any Right to the Sugars themselves, Kings selling these Sugars, after the Petitioner’s Arrestments, can­ not deprive them of the preferable Right they had acquired, by their prior Arrestment. The Price comes in place of the Sugars, and must be governed by the same Rules. Thus far the Argument has proceeded upon Supposition of the competing Creditors being all in pari cas u: But as in Pact it appears, that Macfarlane had given Notice to Glen and Brown, of the Man­ date he had given to King to make them a partial Payment, to ac­ count of their Debts, without any Reference to the Consignment of the Sugars, or specifying any particular Fund out of which King was to make these Payments, it remains for your Lordships Consi- deration, what Difference that ought to make in the Case of these two different Creditors. And the Petitioners, with all due Deference, submit it to your Lordships, that it ought not to influence the Question in the small- est Degree. That Notice imported no more, but that King, the Correspondent and Agent of Macfarlane in this Country, had Orders to make them a partial Payment; and that the Residue of their Debts would soon be paid. If the Mandate itself neither did, nor was meant to transfer to them the Property of the Sugars, how was it possible, that Notice of that Mandate, had the Notice been more complete than it was, could have so much a stronger Effect, to screen, or withdraw the Sugars themfelves, which still remained the Property of Macfarlane, from being attachable by his Creditors. Upon these Grounds the Petitioners therefore humbly submit the Case to your Lordships Review, so far as their Interest is concerned: But But if contrary to Expectation, your Lordships shall be still dispo- sed to adhere, they would humbly submit it, upon the Principles of Equity, whether they ought not at least to be brought in pari passu with the Creditors in the List, for a rateable Proportion of the Price o f the Sugars corresponding to their Debts. May it therefore please your Lordship, to alter the above-mentioned Interlocutors, so far as your Petitioners Interest is concerned: And, in the first place, To find, That as, by virtue of their Arrestment of the Sugars themselves,-when undisposed of, they had acquired a preferable Right to the Sugars, the after Disposal of these Sugars by King, could not deprive them of thaprenc; nd therefore that they are equally prefabl upon the P rice of the Sugars, as thereafter disposed of by King. 2 d l y, To find. That the Notice g i­ ven to the tw o particular Creditors above mentioned, of the Mandate or Order to Macfarlane, can be of no Prejudice to your Arrestment of the Sugars themselves. Or at least, 3d ly. That your Petitioners ought to come in pari passu with these other Credi­ tors.. According to Ju stice, &c. ALEX. LOCKHART.