Scottish Court of Session Decisions

This was an action to ascertain the right to a consigned sum, being the price of certain tweed goods sold in Australia by Mr Halliburton, wool broker there, and which price, after being brought to this country and deposited in bank, was claimed by three parties, viz., Messrs James Mitchell & Company, Willans, Overbury, & Company, and Mr Dali, as trustee on the sequestrated estate of Mr George Chisholm.

Mitchell & Company maintained that they had in the year 1864 sold the goods in question to Mr Chisholm, as the agent and representative in this country of Mr Halliburton, and that, the price of these goods being still unpaid, Mitchell & Company, as creditors of Halliburton, were entitled to be preferred to the consigned sum, being the fund in medio, or, at all events, were entitled to a share of it along with the other creditors of Halliburton Willans, Overbury, & Co. claimed the fund in virtue of an alleged right of pledge or hypothec, which they

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maintained they had acquired from Halliburton and Chisholm in security of certain wool shipments; while Mr Dali, Chisholm's trustee, claimed the fund on the ground that the goods were bought by Chisholm from Mitchell & Company, as an individual and not as an agent, and sold in Australia by Halliburton for Chisholm's behoof.

An objection having been taken to the relevancy of Mitchell & Company's claim, on the ground that Halliburton was not a claimant in the process, the Lord Ordinary ( Barcaple) pronounced the following interlocutor:— The Lord Ordinary having heard counsel for the parties, and considered closed record in the competition, Finds that the facts averred on record by the claimants James Mitchell & Company are not relevant to support their claim to any extent: Repels the claim of the said James Mitchell & Company, and decerns: Finds them liable to the other claimants, Thomas Dali and Willans, Overbury, & Company, in the expenses of answering and discussing the claim of the said James Mitchell & Company: Allows accounts thereof to be given in, and remits the same when lodged to the auditor to tax and report; and appoints the cause to be enrolled that the competition, as between the said Thomas Dali and Willans, Overbury, & Company, may be proceeded with.

Note.—The argument was limited to the claim of Mitchell & Company, which the other claimants concurred in maintaining to be wholly irrelevant. The Lord Ordinary is of opinion they are well founded in the contention.

“The claim of Mitchell & Company is rested upon two distinct grounds— First, They claim to be ranked preferably on the fund in medio to the extent of £345, 14s., on the ground that, to that extent, the fund consists of the price for which goods sold by them to Mr Halliburton in Australia were sold by or for behoof of that gentleman on his own account in the colony. But, assuming the facts to be as stated by the claimants, the sale and delivery of goods by them to Mr Halliburton could only give them right to demand payment of the price for which they sold them to him. It could not give them any right to reclaim the goods or the price realised for them by the purchaser, either as a surrogatum for the goods or on any other footing. Secondly, Mitchell & Company claim to be ranked upon the fund in medio simply as general creditors of Mr Halliburton for the price of the goods above referred to, and for other sums. The fund is admittedly money which was remitted by, or by order of, Mr Halliburton to this country, and has been consigned in the City of Glasgow Bank. It is claimed by Dali, Chisholm's trustee, as being the price of goods belonging to Chisholm, and sold on his account by Halliburton. It is also claimed by Willans, Overbury, & Company, in respect of an alleged security transaction in their favour. It is not—claimed in any way by Halliburton, who has not appeared, and has lodged no interest in this process. In this state of matters there is no room for the second branch of Mitchell & Company's claim, which they could only have maintained through Halliburton, and as a riding interest upon his claim, if he had lodged one. If the transaction by which the fund was consigned in bank is liable to objection at the instance of Mitchell & Company, or other creditors of Halliburton, the objection would require to be insisted in otherwise than by lodging a claim in the multiplepoinding.”

Mitchell & Company, after making certain additions to the record, to show the nature of the consignation, reclaimed against this interlocutor.

M'Kie for reclaimers.

Shand and Rettie for Willans, Overbury, & Company.

J. Marshall for Dali.

The Court, being of opinion that there was no ground for holding Mitchell & Company's claim to be irrelevant any more than that of the other claimants, unanimously recalled the Lord Ordinary's interlocutor, and remitted the case to him to allow the parties a proof of their averments.