other halves were to be sent next day, and without them there could be no payment.

In short, in this case there was nothing more than a mere intention. and preparation for delivery. It is just similar to that of Salter, 7th Feb. 1786, in which it was found that there was no transmission of the property.

Argument for Messrs Crawfords.

There was not only an intention on the part of Mr Henderson to deliver these notes and the bill to Messrs Crawfords, but he had actually done all that was in his power to deliver them, and had in fact completed the delivery of them. The letter with the penny was given to his servant to be given to the runner, and was lying ready to be given to him before the time of Mr Henderson's awaking in the morning, if he had lived to awaken. Even though he died, it ought still to have been delivered as he had ordered. His servant no doubt would have delivered it, if Stocks had not interfered. But Stocks had not the smallest right to meddle with it. Not only had he no right to open it and to change the indorsation, but he had no right to stop the letter at all. He had no more right to stop the course of this letter than a mere robber, who had taken it from the servant by force, would have had. The delivery, therefore, must be still held to have been completed, notwithstanding this interference. The creditors of Mr Henderson cannot take any advantage of such an illegal act. It is not enough to say, then, that the letter is still to be regarded as unopened; it must be regarded as if it had reached the Messrs Crawfords by the post, in which case there is no doubt they would have been entitled to receive the money for the notes and bill.

One Judge oband given it to as it was still in

There was some difference of opinion on the bench. served, That Henderson, after he had written the letter his own servant, still retained the power of stopping it, his own possession by means of his servant: That this right of retaining it, on his death passed to his creditors, and if Stocks had not interfered, it would have come into the hands of the trustee in a legal way: That, in that case, the trustee would not have been bound to deliver it, but would have retained the property for the general behoof of the creditors : That, besides, only one-half of the notes were in this letter, and as to the other halves they were clearly not delivered, which rendered the delivery of the first half, even if it had been delivered, an unfinished step.

On the other hand, it was observed, That in this case there was no sequestration, the trust was merely voluntary, and therefore the creditors had not in them nor had their trustee any right to this money at all: the act of Stocks alone put it into their hands, and that was clearly an unwarrantable act, which the creditors could not take advantage of: The delivery of the letter to a servant, to be conveyed to the postman, gave the person to whom it was directed a right to receive it, the direction having never been recalled by proper authority: That as to the other half of the

notes, not being enclosed, that was of no importance, because payment would have been made by the bank on the first half and the letter.

The Court" adhered to the interlocutor of the Lord Ordinary."

COMPETITION.-If a creditor use an inhibition against his debtor, and if, after the inhibition, but before any diligence used by any other creditor to affect it, an heritable subject belonging to his debtor be sold by voluntary sale, then the inhibiting creditor will have a preferable claim upon the price of that subject, in virtue of his inhibition.

JAM

AMES REYBURN was proprietor of a small tenement in WallaceMES He owed L.100 to David Cumming, and various sums to other creditors. Cumming raised letters of inhibition against Reyburn on the debt due to him, which were regularly executed and recorded on the 2d May 1775. No other creditor did any diligence against Reyburn's estate. In this situation, Reyburn soon after sold the tenement to William Baird, who then held it as tenant for rent. Cumming went abroad in the naval service. His wife, Jean M'Lure, having in vain endeavoured to get payment of the debt due to her husband, at last raised, in his name, an action of constitution of this debt, in which she obtained decree, and afterwards an action for reduction of the sale on the inhibition, concluding also for payment of the rents. She obtained decree in this action also, extracted it, and thereon charged Baird, who presented a bill of suspension, and afterwards brought a reduction reductive of the former proceedings, in which a long and intricate litigation took place. While this depended, an adjudication was led in name of Cumming, whose remaining in life began to be uncertain; and on the other part, Baird got an assignation to the other debts due by Reyburn, and thereon likewise raised an adjudication, within year and day of the adjudication in Cumming's name. A judicial factor was appointed on the estate of Cumming, who was at last ascertained to be dead; and his wife and chil

dren

.

dren sisted themselves in the proceedings above-mentioned instead of him. In the action of reduction reductive the defenders were assoilzied, and the inhibition found good.

The question then, 1st, As to the tenement itself,-2dly, As to the rents since the time of the sale,-took this shape. Jean M'Lure and the children of Cumming claimed the estate, on the inhibition and adjudication in name of Cumming. They also claimed the rents on the inhibition, from the time of the sale, or at least from the time of the decree of reduction; and on their adjudication from the date of it.

Baird maintained, that the adjudication in name of Cumming was void as being led without any authority from him, and that an inhibition alone gave no right to either land or rents, so that they were both carried. by his own adjudication, which was the only valid one.

The Lord Ordinary, (29th May 1804) to whom the cause had been remitted, found, "That the inhibition executed by David Cumming in the year 1774, remained latent till the year 1796, and that this negative or "prohibitory diligence could create no preference on the rents from the "date of the disposition to Baird in the year 1794, prior to the adjudication "led in the name of David Cumming in the year 1800, and that Baird is not liable to account for said rents: And in respect that the principles "adopted by the court with regard to the action brought by Jean Maclure, and the authority under which she was understood to have acted, be considered as sufficient to support the adjudication led by her " in his name; and as Baird's adjudication was within year and day "thereof, finds these adjudications are come in pari passu, and decerns."

may

"In

On a representation for Baird, his Lordship's interlocutor was: "respect the adjudication upon which the respondents found in the present competition, was led in the name of David Cumming alone, though "out of the country, without mention of his wife or any other person, as his attorney, finds said adjudication cannot be preferred pari passu "along with the representer's adjudication regularly deduced; there"fore finds the representer preferable upon the rents which fell due subsequent to Cumming's adjudication; so far alters the interlocutor repre"sented against, and decerns.'

The cause came into the Inner-House by petition against these interlocutors, with answers. A variety of arguments are contained in these papers, which it is not necessary to report.

On advising the cause, the Lord President observed,

That the points on which this cause depends had been decided so long ago as the year 1777, in the case of Monro of Pointzfield, on a solemn hearing in presence, a decision of great importance, though unfortunately it is not known, because the decisions for that year are not yet reported. [His Lordship produced the papers in the cause, and notes of the opinions of the Judges, particularly Lord Braxfield and President Dundas.] From these, his Lordship said, it appeared, that in that case there had been an inhibition against the estate of a proprietor of land, who owed other debts besides that to the inhibitor. That, after the inhibition, but before any

G

any other diligence was done against the estate, it was sold, and then, after the sale, adjudications were led by the creditors who had not inhibited, and a competition ensued. In that case the Court were clear, that the inhibitor was preferable for his debt without any further diligence at all. It was held that the sale rendered all diligence by other creditors against the estate void; because as to them it was a good sale, and conveyed away the property from their debtor. Their only claim it was found must be on the price in the hands of the purchaser. But the inhibiting creditor was entitled to disregard the sale altogether, because as to him it was struck at by his inhibition, therefore he might adjudge the estate. But further, his debt being the only one on which diligence could be done against the estate, without regard to the rights of the purchaser, was equivalent to a real incumbrance on it, which the purchaser was entitled to see cleared off before he paid the price, or to pay off himself with the first end of the price. Adjudication by the inhibitor was therefore, though competent, not necessary, because he was sure of payment out of the price of the estate, in preference to all the other creditors. This was solemnly laid down as law by the Court, and particularly explained by the able judges above named in the above mentioned case, and the same rule of law applies to the present case.

Here there is an inhibition; then a sale; then adjudications by the creditors who had not inhibited, and no doubt also by the inhibitor. This last adjudication may be put out of the case. It is argued to be inept, perhaps it is so ; but at all events it is unnecessary; the preference of the inhibitor in no degree depends upon its validity, (especially as it may be renewed in more proper form,) but rests upon the effect of the inhibition combined with that of the sale.

By the inhibition the sale to Baird is reducible as to the inhibitors Maclure, &c. Then by the sale all diligence against this tenement by the other creditors of Reyburn is void, since the property was carried out of him, by a conveyance valid as to them, before that diligence was executed. The adjudication, therefore, on their debts is of no effect at all, and can never compete with the inhibitors if they should adjudge even now. This they night do, and their adjudication would still be the only effectual adjudication of this tenement. But it is not necessary for them to do this, because they must be paid in full by the purchaser Baird, who cannot hold the estate, without getting this debt purged on which the inhibition has been raised. Unless, therefore, Baird is willing to give up the estate to them, he must pay this debt, since the seller Reyburn cannot pay it. He may, no doubt, retain it out of the price, but it must be paid to the inhibitors. Now as it may be presumed Baird will not give up this estate, it is not necessary to enter into the other points argued in the papers.

This view a great majority of the Court adopted; and accordingly the interlocutor of Court (19th November 1807) was: "The Lords alter the "said interlocutor, and find that the adjudication led by William Baird is "inept, and that the petitioners became preferable creditors on said sub"jects and rents thereof, from the fifteenth day of June seventeen hun"dred and ninety-six, the date of the decree of reduction obtained against "William Baird, in virtue of the inhibition executed by David Cum

"ming

ming in seventeen hundred and seventy-four, and decreet of adjudica"tion following thereon, to the extent of the debt contained in the said. "adjudication *"

CHARLES FERRIER, Trust-Disponee of ROBINSON and COMPANY,

AGAINST

BRITISH LINEN COMPANY.

BANK.-A bank is entitled to plead compensation upon bills discounted by its agents, though the agents be liable to the bank for payment of the bills.

C

HARLES FERRIER, trust-disponee on the estate of Robinson and Company, brought an action against the British Linen Company for a sum of L.563, belonging to that estate, which had come into their hands. They pleaded compensation, in part, upon a bill for L.240 drawn by Robinson and Company, which had been discounted for the British Linen Company by their agent at Inverness, and had been dishonoured. Ferrier refused to admit this compensation. The Lord Ordinary found, "That the defenders are entitled to retain the amount of the bill discount"ed by their agent for L.242."

The pursuer reclaimed.

Argument for Pursuer.-The British Linen Company have no interest in the payment of bills discounted by their agents. The whole risk of discounting lies on the agents from whom the Company equally receives repayment of the sums advanced for discounting, whether the bills are honoured or not. The Company are therefore not entitled to plead com

pensation on this bill.

Argument

* This form of the interlocutor does not prove that the adjudication was in itself unexceptionable, but the creditors having no interest to object to it, it was no longer challenged by any body, and therefore stood as valid.