Answers 1766

December 4. 176 a n s w e r s T O The PET IT IO N of Meff. Greenshiels and Wardrop Merchants in Glasgow. D A V ID MacFarlane merchant, in company with RobertThomson in the island of St Christophers, came to Scotland several years ago, in order to purchase goods upon the account of the company; and returned again to the West-Indies, leaving considerable debts due by them to seve ral merchants in Glasgow for these purchases. Very soon after MacFarlane had returned to St Kitts, his copart­ ner, Thomson, obtained a lucrative office in one of the neighbour­ ing islands. From the nature of this office, Thomson finding it inconvenient to continue any longer in trade, the copartnery was dissolved; and it was agreed that MacFarlane should, upon his own private account, take the whole of these goods which had been last imported from Scotland on the company-account, and that he should relieve Thomson of the price. MacFarlane continued to carry on the trade by himself very suc- cessfully; and finding his circumstances in a good situation, he resolved, as early as it was in his power, to make remittances to this country for the payment of these creditors. For this purpose he, in 1763, made remittances by bills of exchange to Thomas Hutchison merchant in Glasgow, his usual agent and correspon- dent in Scotland. These bills having been returned dishonoured, MacFarlane, in 1764, shipped at St.Croix, where he had sold the goods which had been brought there in copartnery betwixt him F O R Meff. Cross and Bogle, George Brown, and others, Mer­- chants in Glasgow, Creditors of MacFarlane andThoms and Thomson, 70 hogfheads of fugar aboard the Triton, Captian 1 Towers, consigned to James King Senior merchant in Port-Glas- gow, ordering him to apply the proceeds of this cargo towards the payment of these creditors, viz. the creditors of MacFarlane and Thomson. On the 13 th of September 1764, he wrote letters from the island of St Croix to these creditors in Scotland, advising them of the return of the bills of exchange, and desiring them now to a p ply to Mr King for payment of their several debts. On the 26th of September, he wrote a letter to Mr King, which was transmitted, together with the cargo consigned to him; acquainting him with the purpose for which the cargo was sent, and mentioning the propor­ tion in which he was to pay the proceeds of the cargo to the different creditors. This letter to Mr King is as follows: “ St Croix 2 6 t h September 1764. Mr James King Senior, Sir, Referring to my other letters by this vessel, this only serves to inclose you in- voice and bill of load in g for 70 hogsheads sugar, shipped you, by the Triton, Captain Towers, on my own private account. Cost, with all charges here, L. 15: 12: 6 currency, which I wish safe home, and to a good market. They are all purchased with cash, and I am perswaded will turn out to advantage. I have been obliged to draw on you in favour of Mr John Pen­ man, at 90 days sight, for L. 1 00 Sterling, which I hope you will pay when due. I have also wrote to several people in Glasgow and desired them to apply to you for the several sums of money which you'l l s ee by the particular list at the foot of this lette r, which amounts in all to L. 800: 18: 3 3/4 Sterling which is more than my sugars can neat; but whatever they may be short, you'll please take it out of the proceeds of Mr Tenent's and my joint sugars, shipped you by this vessell, and our inter-est in the schooner." A s Thom son had retired from trade, and as MacFarlane had ta­ ken the whole of the goods brought from Scotland upon his own separate account, so in this letter to Mr King he writes that he had shipped these goods on his own private account; and he means thereby to distinguish them from the sugars, the joint pro- perty of him and Tenent, mentioned in the same letter. The vessel, with the cargo of sugars, having arrived safe in the harbour of Port-Glasgow, and the creditors of MacFarlane and Thom- son having applied for payment, Mr King wrote to most of them acknowledging his having received the cargo consigned to him by MacFarlane and Thomson, and promised to apply the proceeds as he he had been directed; and he made a like notification and promise to the rest verbally. After this, Mr John Glen, a creditor of M 'Farlane and Thomson, or his trustees, to whom M‘Farlane had appointed a proportion of the proceeds to be paid, thought proper, to use arrestments in the hands of Mr King. And, of this date, Meff. Greenshiels and Wardrop, pretending to be creditors of M'Farlane, likewise used arrestment, upon a depending action, in the hands of Mr King; who, upon his part, raised a process of multiple-poinding, calling all parties into the field, particularly the petitioners, and both M'Farlane and Thomson. A competition accordingly arose between the arresters and the creditors, for whose payment the cargo had been consigned. This question having come before the Lord Auchinleck Ordina­ ry, his Lordship was pleased, on the 6th of February last, to pro­ nounce the following interlocutor: “ The Lord Ordinary having considered the missive produced by Meff. Cross, Bogle, and com­ pany, with the reasons for preferring them in consequence thereof, and the memorial for John Glen’s trustees in answer to these reasons, finds Glen’s creditors having habilely arrested the common debtor's effects in Mr King’s hands, before 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 pleased, to countermand the order given; and therefore prefers the trustees for Glen and company; and decerns in the prefe­ rence, and against the raisers of the multiple-poinding.” Against this interlocutor the respondents offered a representation; in which they stated their claim, and the arguments in support of it, more fully than they had formerly done: And the Lord Ordi­ nary having considered the representation, with the answers, was pleased, on the 6th of March last, to pronounce the following in­ terlocutor: “ 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 arrested, in prejudice of the persons in whose favour the consignment was made; and therefore that Glen’s trustees can take nothing by their arrestm ent.” Against this interlocutor the trustees of Glen, the arresters, pre­ ferred a reclaiming petition; which your Lordships having ap­ pointed to be answered, you were pleased, of this date, to pro-. • • nounce nounce the following interlocutor: “ The Lords having advised this petition, with the answers thereto, they adhere to the Lord Ordinary’s interlocutor reclaimed against, and refuse the desire of the petition, in so far as it reclaims against the said interlo­ cutor: And in respect that the other point mentioned in the pe­ tition, viz. whether the petitioners were preferable upon the joint concern of M’Farlane and Tenent, has not yet been before the Lord Ordinary; therefore they remit the same to his Lords hip, with power to call and hear parties procurators thereon, and to do and proceed therein as he shall see cause.” Another petition, reclaiming against this interlocutor, was thereafter presented to your Lordships, in the name of the trustees of Glen, and likeways of Meff. Greenshiels and Wardrop mer- chants in Glasgow; but you were, of this date, pleased to refuse that petition, without answers. By this interlocutor, the respondents, the creditors of M'Farlane and Thomson, for whose payment the cargo had been consigned, humbly apprehended, that the question between them and the creditors-ar- resters had been finally determined; and they did not expect to have been involved in any farther litigation with regard to this point. Meff. Greenshiels and Wardrop, however, have thought proper to present a third petition to your Lordships, reclaiming against two consecutive interlocutors, which had found, that the creditors- arresters could not attach the goods destined for the payment of the respondents. Your Lordships having appointed that petition to be answered, the following answers are humbly offered on the part of those creditors, for whose payment the cargo was consign ed They must, in the first place, with great submisio n, beg leave to maintain, That as they are possessed of two consecutive interlo­ cutors of your Lordships in their favour, it is no longer compe­ tent for the petitioners to bring this question under review. In the next place, they shall endeavour to show your Lordships, that the petitioners cannot be considered as creditors of M 'Farlane. And in the last place, even admitting the competency of this petition and supposing the petitioners truly creditors of M 'Farlane, the res pondents shall endeavour to satisfy your Lordships, that the cargo consigned to King for their payment, cannot be affected by the ar- restments of the petitioners. y With With regard to the first, your Lordships will be pleased to obs erve, that the petitioners used arrestments in the hands of Mr King, soon after the arrival of the cargo consigned to him by M'Farlane. When King railed the multiple-poinding, the peti­ tioners were called as defenders, and appointed to produce their interest. The plea of the petitioners rested upon the very same foundation with that of the other arresters; and being sensible of this, they, merely to avoid any share of the expence, avoided en­ gaging in the litigation, till the fate of the arrestments of Glen’s trustees should be determined. As therefore the petitioners were arresters of the same cargo with the trustees of Glen, with regard to the effect of which your Lordships have finally decided; as they were called by King in the multiple-poinding, and appointed to produce their interest; and as the plea of all these arresters, rests upon the very same foundation, the respondents humbly hope your Lordships will find, that your last interlocutor finally determined the effect of all these arrestments, and cannot be again brought under review. But further, your Lordships will observe, that if your last in­ terlocutor shall not be found final in this matter, the respondents can discover no end to their present litigation. Several other per- sons who either truly are, or pretend to be creditors of M 'Farlane, likewise used arrestments in the hands of Mr King; and although called in the multiple-poinding, have not yet produced their in- terests. If therefore your Lordships interlocutor is not final, it may easily be foreseen, that these other arresters, who have not yet produced their interest, may come one after another, in the man­ ner the present petitioners have done, and involve the respondents in an endless litigation. The petitioners would endeavour to represent their case as more favourable than that of the other arresters; and would make your Lordships believe, that M 'Farlane intended a partial pre­ ference of those particular creditors contained in the list trans- mitted to Mr King, together with the cargo of sugars. These in- sinuations, the respondents hope they shall be able fully to ob­ viate; and for that purpose they shall proceed to the second point proposed in these answers, and shall endeavour to shew, that if the petitioners are truly creditors of M’Farlane, he was altogether ignorant of their being so, when he consigned the cargo to Mr King for the payment of the respondents. B In 176M'Farlane came to Scotland; and having purchas ed from the respondents a considerable quantity of goods, re- rurned again to the West-Indies. In 1762, he wrote from the West Indies to his usual correspondent in Scotland, Thomas Hut­ chison merchant in Glasgow, desiring him to ship and send him out a quantity of goods from Scotland. These goods were accord ingly purchased from a variety of different hands by Hutchison and having been packed and shipped by him for the West-Indies he likewise insured them, and transmitted the invoices to M'Farlane. A quantity of these goods were purchased by Hutchison, from the present petitioners Meff. Greenshiels and Wardrope; and this is the foundation of the debt, for which they now claim payment from M'Farlane. It will therefore be remarked, that these goods were purchased from the petitioners by Thomas Hut­ chison, and that they cannot produce any order from M'Farlane for sending these goods. But further, your Lordships will observe, that M'Farlane really believed that Hutchison himself had paid for all that cargo o f goods, which he sent out to the West-Indies in 1762, and there­ fore believed Hutchison alone to be his creditor for that cargo. We accordingly find that Hutchison, in an accompt-current with M'Farlane, debits him for that cargo of goods sent out in 1762 and acknowledges a balance due in favour of M'Farlane. ’ A s th e r e fo r e th e petitioners cannot produce any order from M'Farlane for those goods which they sold to Hutchison and as Hutchison afterwards received payment for these goods from M' Farlane, as appears evidently from the accompt-current betwixt them ju st now mentioned, the respondents humbly ap-rehend th a t t h e p e t i t io n e r s c a n n o t b e considered as M'Farlane’s credi tors. The petitioners sent no invoice to M'Farlane of the goods which they had sold to Hutchison, to be sent to him; and as M'Farlane believing Hutchison to have paid for the whole cargo, gave him credit accordingly in their accompt-current, it is humbly apprehended that the petitioners can only be considered as the creditors of Thomas Hutchison, and not of M 'Farlane. If, however, your Lordships shall be of opinion, that the pe titioners are notwithstanding creditors of M'Farlane, the respon- dents apprehend the circumstances now mentioned will at least sufficiently show, that M'Farlane, when he consigned the cargo to Mr. King, was altogether ignorant of his owing a single shilling to to the petitioners. It cannot therefore be pretended, that be cause the petitioners were not mentioned in the list transmitted to Mr King, M ‘Farlane intended any thing unfair, or any improper preference of particular creditors. The respondents have thus endeavoured to show, that as the question between them, the creditors for whose payment the car­ go was consigned by M‘Farlane, and the other creditors-arresters, has been decided by two consecutive interlocutors of your Lordships, the present petition is no longer competent. And in the s econd place, that even supposin g the petition competent, their claim cannot be admitted, as they are not creditors of M 'Farlane. The respondents shall, in the third place, proceed to consider the claim of the petitioners, even admitting them to be creditors of M'Farlane, and their petition to be still competent. And they must, in the first place, observe, that the petitioners have very confidently ventured to alledge, that David M'Farlane is in- solvent, has left St Christophers, and has taken refuge in the Da nish island of St Croix, without the reach of the laws of this coun­ try. An attack of this nature upon the credit of a merchant would surely require to be supported by good evidence. But your L ordships will be informed, that this allegation is not only made without the least evidence whatever to support it, but is like- w ise contradicted by all the latest advices from the West-Indies, which positively assure us that M 'Farlane’s affairs are in a good situation, and that he has more than sufficient to pay every shil- ling that he owes. For several years past M'Farlane’s chief trade has been in the island of St Croix, from wh ence the remit­ tance in question was sent, and of late his residence has been entirely in that island, in order to collect his debts, which, your Lordships know, it is very difficult to recover in the West-Indies. It appears cruel in the petitioners thus wantonly, and wi thout the least evidence, to attack the character and credit of a merchant, who, according to the latest and best advices, is, on the contra­ ry, of unsuspected credit, and who is applying his money gra­ dually to the payment of his creditors in Scotland, in proportion as he has become enabled to do so by the success of his trade in the West-Indies. In a very few months he proposes to make re­ mittances to Scotland, sufficient to pay every shilling that he owes. In the mean time, he has sent home as much as he could ju st now conveniently spare, consigned into the hands of a merchant in this country, for the behoof of his creditors; and defiring some small debts debts to be paid off altogether, and the rest of the proceeds to be distributed, not in the total payment of any one of the remaining creditors, but equally amongst them all. fo The respondents humbly apprehend, that when, this cargo con- signed to Mr King for their behoof, arrived at Port-Glasgow, it was so much appropriated to them, as entirely to prevent its being attached by any other of the creditors of M‘Farlane. The respondents might maintain, upon the authority of some of your Lordships decisions, that sums in the hands of a third party, destined for a particular purpose, could not be affected by the arrestments of creditors. They shall however only quote one decision, which is thus abridged in the Dictionary, vol. II. p. 80. “ Upon a verbal bargain about lands, the purchaser, in security of the price, deposited some bonds and bills with the seller. A creditor of the purchaser having arrested these bonds and bills in the seller’s hands, and the bargain being thereafter completed in writ, it was found, that the arrestment fell, and that it did not convey the locus penitentiae to the creditor, which was com­ petent to his debtor the purchaser, nor was it any medium im- pedimentum to hinder completing the bargain. 2 1 st January 1730, St Clair contra Sommerville." The grounds upon which your Lordships pronounced this decision seem to have been, that a creditor cannot oblige his debtor to use that power of revocation; and farther, that an arrestment could only affect and carry the object arrested, in the same date, and under the same qualities in which it stood in the person of the debtor at the time of the ar­ restment. The respondents might argue this point farther, and might maintain, that often from a transaction betwixt two pers ons, there did arise a right to a third, though ignorant of that transaction, which right could not be recalled either by the Parties themselves, or be affected by the arrestments of their creditor s. As, however, the respondents apprehend they can safely rest their plea upon the special circumstances of their cafe, they shall not trouble your Lordships with any farther arguments upon this general point..- It will, in the f irst place, be observed, That when M'Farlane sent these goods from the West-Indies, to be put into the hands of Mr King, they were wholly destined for the payment of his cre­ ditors. At the same time that he consigned this cargo to M r King, he wrote letters to all his different creditors advising them of the re­ turn (8) turn of the bills of exchange which had been remitted to Thomas Hutchison for their payment, and desiring them to apply to Mr King, from whom they would receive immediate payment. This the respondents humbly conceive, was, in effect, an asignation to those particular subjects, which were sent solely for the purpose of their payment. The petitioners pretend to insinuate, that M'Farlane had wrote letters only to two of his creditors, desiring them to apply to Mr King for payment. The respondents, how­ ever, can fully remove this objection, as they can positively affirm, that M'Farlane wrote letters to all the different creditors mentioned in the list fent to K ing; and accordingly have now produced these letters themselves in process. The respondents must further beg leave to maintain, that after this consignment of the goods to King, expressly and solely for the purpose of their payment, and after the letters from M'Far­ lane to the respondents, authorising them to apply to King for payment, King took possessio n of the goods as their trustee, and was accountable to them for his application of them. It will be particularly remarked that King, to whom these goods were consigned, was not, as the petitioners have alledged, the common agent of M'Farlane at Port-Glasgow; on the contrary, the respondents are informed, that King was hardly ever before em­ ployed by M 'Farlane to transact any business for him. M 'Far lane’s constant agent and correspondent in Scotland has been his own uncle Thomas Hutchison; and it will be particularly ob- served, that the very year before this consignment to King, Hut­ chison was the person to whom the bills of exchange were remit­ ted by M'Farlane, for the payment of his creditors. Your Lord- ships will therefore perceive, that in this consignment M'Farlane does not employ his own agent, but a person with whom he had not before had any transactions; and he employs him solely to receive this cargo, which was to be wholly applied to the pay­ ment of his creditors. The respondents therefore humbly appre­ hend, that King must be considered as their trustee; and that as soon as he had received the cargo destined for their payment, the property of the goods must be considered as transferred from M 'Farlane to them: They apprehend that it was no longer in the power of M 'Farlane to recall the commisio n, and that an arrest- ment in the hands of King their trustee, cannot be considered as G more more effectual, than if it had been used in the hands of the credi­ tors themselves. A late decision of your Lordships, in the cafe of Souper against the creditors of Smith, 23d January 1766, seems to be entirely ap­ plicable to the present argument. In that cafe your Lordships found that a power from a bankrupt to a trustee to sell his effects for be­ hoof of his creditors, being executed, arrestment was not compe­ tent in the hands of the trustee, so as to disappoint the pari passu preference of the creditors. The respondents, with all submission, cannot discover that this circumstance of the trustee’s having sold the effects of the debtor, can make any difference between the case now quoted and the pre- sent one. They cannot perceive, that the trustee’s having sold the effects, either bound him further, or made him more the trus tee of the creditors than he was before. As the respondents hope they have thus shown to your Lord­ ships, that King must be considered as their trustee, and that as soon as the cargo was received by him, the property of these goods was transferred from M'Farlane to the respondents, his cre­ ditors, they apprehend that these circumstances will afford an eas y answer to the most of the argument of the petitioners, and to the decisions quoted by them in support of their argument. I f in­ deed these goods had perished before they were received by King the trustee of the creditors, the question might have been more doubtful; but as soon as the goods were actually received by King, the property was effectually transferred from M'Farlane and could not be affected by the diligence of his creditors. The different cases quoted by the petitioners seem to differ very mate- rially from the present case; as in this, King must be considered as the trustee of the creditors, while in these cases the money or ef­ fects of the debtor are in the hands of his trustee; and therefore not transferred to his creditors. The petitioners alledge, that the present case is much stronger than any of those other cases quoted by them, because here the goods themselves were arrested in the hands of King, while in the other cases it appeared, that the goods of the debtor had been sold, and the price only remained in the hands of the trustee. The respondents, however, with great sub­ mission as they have already observed, cannot discover that this circumstance makes any difference in the case. They conceive, that the mandate is equally revokable by the mandant, after the goods goods have been sold, as before; and they cannot perceive, how the goods being converted into money in the hands of the man datary, can strengthen the claim of the creditors. But further, even if the respondent should admit, that when the cargo was received by Mr King, the property was not trans­ ferred from the debtor, but might be affixed by the diligence of his creditors, they apprehend that this continued no longer to be the case, after the letters which were written, and the promises which were made by King to all the creditors for whose behoof the cargo was consigned. As soon as Mr King had received the cargo, and directions from Mr M'Farlane, concerning the manner in which it was to be applied, he would have immediately paid the creditors their respective proportions, if he had been in cash. He wrote, however, letters to the creditors, acquainting them of the consignment which had been made to him for their behoof, and promising to dispose of it, and to apply the proceeds in the manner directed, as soon as poilible. These letters were all written, and promises made by Mr King, in answer to demands made upon him by his creditors, in consequence of M'Farlane’s advice, prior to any arrestments u- sed in his hands; and as the letters were almost all expressed near­ ly in the same words, a copy of one of them, which is indeed in favour of all the creditors, shall be here given: “ I have invoice and bill of loading for 70 hogsheads sugar, shipped for David M‘Farlane, the proceeds of which I have orders to apply a- mongst the different people he owes in Glasgow; a list of whom he has sent me, and observes you are one; which shall be done as soon as I am in cash for them.” The petitioners have ventured to alledge, that King wrote only to one of the creditors, either before or after the arrival of the sugars. The respondents, however, can positively assure your Lordships, and, i f it shall be thought necessary, can clearly prove that King either wrote letters, or made verbal promises to all the creditors, before any arrestments were used in his hands. Seve­ ral of these letters are now produced in process, all expressed in the same manner with the one above quoted; and it will be par­ ticularly observed, that all these letters were wrote by King in the beginning of January 1765, long before the arrestments of the pe­ titioners, which were not executed till the 3 1st of that month. Your Your Lordships will here particularly remark, that the respon­ dents having first received the letter from M ’Farlane, and after­ wards these letters from King, in answer to their demands on him, rested satisfied with the distribution of the debtor, readily accepted of this consignment, and neither used arrestments, nor took any other step of diligence to secure their payment. I f how­ ever they had not believed, that by this consignment the goods of their debtor were effectually transferred to them, and could not be attached by the diligence of other creditors, they would have im­ mediately proceeded to secure their own payment, by the proper steps of diligence; and they could easily have done so, long before the date of the petitioner’s arrestment. The respondents humbly apprehend, that by these letters and promises, King became bound to pay to the creditors the sums as- signed to them in the letter of M‘Farlane. Supposing King to be the mandatary of M ‘Farlane, and not the trustee of the creditors, yet that mandate could only be revoked while matters remained entire. As soon as matters became no longer entire, and King thus obliged himself to pay to the creditors their proportions of this consignment, the power of recalling the mandate given to him ceased. This obligation which King had come under to pay the creditors, would have been a sufficient defence to him against M'Farlane himself, if he had chosen to recal his orders; and there can be no doubt, that every defence competent against the debtor himself, may be urged against arresters. As an authority in support of this argument, the respondents shall mention one very late decision of your Lordships, in a case very similar to the present. It is the case Stalker against Ayton, 9th February 1759.—Trotter, a merchant in Jamaica, sent a cargo of sugars, consigned to Ayton, at Glasgow; and, in a letter, desired him, “ When he received the proceeds of the cargo, to discharge certain bills and accompts, due by him in Scotland, as far as the proceeds would go." To this letter he subjoined a list o f creditors, to whom these bills and accounts were due, in which Stalker was set down as one. Ayton insured the cargo, and re­ ceived it; made out an accompt of the proceeds, and allotted a certain share to each of the creditors, in proportion to their debts. All the creditors agreed to accept of this dividend except Stalker; and Ayton obliged himself- to pay to the other creditors their respective s hares. The terms of this obligation were as follows: “ we "We the creditors of the above John Trotter, having examined the above accompt, find the s ame fairly stated, and approve thereof, and as the said Andrew Ayton has agreed to pay us our respective proportions of the above John Trotter his effects, as above stated, (or what he may or shall receive of the same), so soon as he is in cash for answering the same, & c ” Stalker arrested in Ayton’s hands, and a competition arose between him and the other creditors. It was urged for the creditors, That when goods are consigned for the payment of certain creditors, the property is so much transferred to these creditors, that the goods are not liable to diligence, by arrestment at the instance of other creditors. And it was further urged, That the arrestment was likewise ineffectual, as Mr Ayton had become bound to pay the dividends agreed upon to the other creditors, out of the pro­ ceeds of the cargo; and that they had thereby acquired such a right to the proceeds of this cargo, that it could not be affected by Stalker’s after-arrestment. " The Lords found, that Mr Ayton was not interpelled by the said arrestment, from making pay­ ment to the creditors, in pursuance of this obligation." The respondents humbly apprehend the decision now quoted to be extremely applicable to the present case; and as, in that case, Ayton obliged himself to pay the creditors their respective propor­ tions of what he should recover, as fixed among themselves, after the cargo had been received; so in the present cafe, King became bound to pay to the creditors, as origina lly fixed by the debtor himself, and acquiesced in by the creditors. One material dif­ ference between these cases is to be remarked indeed; that, in the cafe quoted, the circumstances of Trotter, the common debtor, were much suspected, while those of the present debtor are in a good situation. The respondents shall only beg leave to trouble your Lordships with quoting one other decision, and that was in the question be­ tween the respondents and Glen’s trust ees; in which, by two con- secutive interlocutors, you have found, that the effects consigned to King by M'Farlane, for the payment of the respondents, could not be affected by the arrestments of other creditors. And thus the respondents hope they have shewn, that of late years, the train of your decisions, in questions of this nature, has been uniformly such, as entirely to support their present argument. D Upon Upon the whole, they hope they have satisfied your Lordships, that this petition is incompetent; that even if it were competent, the petitioners had no claim, as they are not creditors of M'F a r lane; and in the last place, even if it should be admitted that the petition is competent and the petitioners creditors of M'Farlane, that still their arrestments cannot affect the cargo consigned to King for payment of the respondents. The petitioners are pleased to insist, That if your Lordships shall be still disposed to adhere to your former interlocutors, that you would at least find, upon the principles of equity, that the petiti­ oners should be brought in pari passu with the creditors in the list, for a rateable proportion of the price of the sugars corresponding to their debts. With respect to this demand, the respondents shall only beg leave to observe, that if M'Farlane was truly insolvent, or even in embarassed circumstances; and if, in that situation, with an in­ tention to prefer particular creditors, he had omitted the petitio­ ners in his lift, then this demand might be made with some de­ gree of propriety. But as, on the contrary, M'Farlane’s affairs are in a good situation, and as he is fully able to pay all his debts, and as it has been further shown that there cannot be the least suspicion of any intention in M'Farlane to favour or prefer parti­ cular creditors, the respondents humbly apprehend, that there is no foundation whatever for this claim of the petitioners. The respondents shall only further beg leave to observe, that M' Farlane, the debtor, is gradually applying his money to the payment of his creditors, in proportion as he has become enabled to do so by the success of his trade. If however merchants abroad, who owe debts in this country, shall not have it in their power, even when their credit is unsuspected, to make remittances to pay their creditors gradually, in the fair and just manner which this gentleman has followed, without having the whole snatched away by some single creditor, it may perhaps be dreaded, that either such remittances will be seldom made, or some concealed method employed, which may be of very dangerous consequence. There is the best reason to believe, that M'Farlane would have made other partial remittances before this time, had not the notice he has got of the arrestments now in question prevented him. In respect whereof, & c. R O B E R T C U L L EN.