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Scottish Court of Session Decisions >>
Patrick Souper v The Creditors of Alexander Smith. [1756] Mor 744 (23 January 1756)
URL: http://www.bailii.org/scot/cases/ScotCS/1756/Mor0200744-076.html Cite as:
[1756] Mor 744
Subject_1 ARRESTMENT. Subject_2 In whose hands Arrestments may be used.
Patrick Souper v. The Creditors of Alexander Smith
Date: 23 January 1756 Case No. No 76.
A person insolvent, at a meeting of creditors, by a missive, empowered a person to sell his goods for behoof of his creditors. The proceeds not arrestable by an individual creditor who was not present at the meeting.
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Alexander Smith being insolvent, did, at a meeting of his creditors, write the following letter, directed to John Watson: ‘I hereby empower you to cause roup and sell the furniture of my house, and liquors in my cellars, for the behoof of my creditors.’
In consequence of this letter, Watson rouped part of the goods.
Souper, a creditor of Smith's, who had not been present at the meeting, arrested in the hands of Watson. This brought on a competition betwixt him and the other creditors.
Pleaded for the creditors, Watson was trustee for them; he was accountable to them, and not to Smith. There was a jus quæsitum to them by Smith's letter; therefore an arrestment in the hands of their trustee was inept.
Answered for Souper, The mandate flowed from Smith; it was revocable by him; it would have fallen by his death: and therefore the arrestment in the hands of the mandatarius was an apt diligence.
The Lords found, That the goods sold, and the prices thereof received by Watson, belonged proportionally to the creditors, according to their debts.
Act. Hamilton. Gordon.Alt. J. Craigie.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 42. Fac. Col. No 178. p. 266.
