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Scottish Court of Session Decisions >>
Henderson v Buddo. [1782] Mor 14349 (20 February 1782)
URL: http://www.bailii.org/scot/cases/ScotCS/1782/Mor3314349-018.html Cite as:
[1782] Mor 14349
Whether a factor's not having made up inventories of the debtor's effects entitles creditors to attach these effects?
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A debtor's effects having been sequestrated, in terms of the statute 1772, and a factor appointed; one of the creditors thereafter proceeded to poind some household-furniture, which the factor had allowed to remain in the debtor's possession.
A friend of the debtor interposed on this occasion, and relieved the goods, by granting his acceptance for the debt and expense of diligence; but, before it became due, insisted in a reduction, on this ground, That the subjects having been vested in the factor for the behoof of the whole creditors, could not be carried off by diligence at the instance of an individual; and that, of course, the acceptance having been extorted by concussion of legal measures, ought to be set aside.
Pleaded for the creditor: The debtor's effects not having been inventoried, as the statue prescribes, remained subject to the diligence of his creditors. At any rate, the objection here urged is only pleadable by the creditors or their factor, not by the debtor or any of his friends.
Answered: The factor's not having expede inventories in due time, is, by the statute, made the ground of summary complaint against him; and on this account he may be remoted from his office; but that will not entitle a creditor to establish a preference by diligence on the articles omitted. The bill in question being a consequence of the diligence, must stand or fall with it.
The Lord Ordinary sustained the defences: But the Lords considered the poinding to have been illegal, and therefore
“Altered that interlocutor, and reduced the bill.”
Lord Ordinary, BraxfieldAct. Maconochie.Alt.Alex. Ferguson.Clerk, Home.
Fol. Dic. v. 4. p. 266. Fac. Coll. No. 34. p. 55.
