Petition by William Coulter, trustee on the Sequestrated Estate of James Elder, objecting to an assignment by Mr. Elder to Messrs Mansfield, Ramsay, and Co., which attempted to convey certain goods sent by Mr. Elder to Mr. Thomas Brunton, Merchant in Kingston for consignment. Mr. Coulter objects on three grounds: 1. That Mr. Elder made the assignment solely to preference certain creditors, including his brother-in-law Mr. Quinn and his friend, Mr. Arrot, surgeon in Edinburgh; 2. that the conveyance was not completed as Mr. Elder never delivered the assignment to Messrs Mansfield, Ramsay, and Co.; and 3. No intimation (legal notice) of the assignation was delivered that was sufficient to divest the cedent and complete the right of the assignee in a competition with other creditors.
Summary of Facts:
In 1787, Mr. Elder obtained a Cash credit of 200 £ Sterling from Sir William Forbes, James Hunter, and Co., cautioned by Mr. Quinn/Quynne/Gwyn (his brother-in-law) and Mr. Arrot. All the money was spent.
On May 22, 1789, Mr. Elder drew upon Mr. Arrot a bill for 130 £ Sterling, which was accepted by Mr. Arrot. On May 23, Mr. Elder discounted the bill with Messrs Mansfield, Ramsay, and Co., Bankers in Edinburgh. The bill was endorsed by Mr. Andrew, writer in Edinburgh. Mr. Elder used this money to close out his cash account with Sir William Forbes and Co, the account closed on June 27, 1789. During this time, Mr. Elder wrote an assignment, dated May 22, 1789, conveying the proceeds of a parcel of goods currently held by Mr. Brunton for consignment to Messrs Mansfield, Ramsay, and Co. to satisfy the debt owed for the advancement of the bill. This assignment was never delivered, but remained with Mr. Elder.
On August 5, 1789, Mr. Elder called a meeting of his creditors. On October 7, 1789, the Sequestration was applied for and granted.
After the sequestration, on November 12, 1789, Mr. Coulter, trustee of the estate, received a letter from Messrs William Sibbald and Co., merchants in Leith, who possessed sugar and rum owned by Mr. Elder, remitted from Mr. Brunton. Mr. Arrot and Mr. Andrew, as writer and endorser respectively of Mr. Elder's debt to Messrs Mansfield, Ramsay and Co., made a claim of preference for the goods, suggesting that the assignment written by Mr. Elder conveyed these goods to Messrs Mansfield and Ramsay. The trustee, Mr. Coulter, denied these claims.
On November 29, 1791, Mr. Coulter filed a petition to the Lords of Council and Session, made by Mr. Coulter, Trustee. Lord Ordinary Henderland heard the petition on December 7, 1791, and rendered judgment for Mr. Arrot.
This appeal follows.