JAMES ADAM v GEORGE ANDERSON (Court of Session)

Farther procedure took place, and a proof upon certain averments by Anderson as to the practice of auctioneers in regard to their rights in making sales. The Sheriff, on advising the case, granted the prayer of the petition, and found Adam liable in expenses.

Adam advocated and pleaded —1. As the furniture in question, and the unrealised proceeds of the roup, were never either actually or constructively in the respondent's possession, they were not legally attached by the arrestment used in his hands. 2. The local practice of Edinburgh as to the powers and rights of auctioneers cannot control those leading principles of law which determine the efficacy of property or possession, and it can have still less effect on the present case, seeing that there was a special agreement.

The Lord Ordinary pronounced the following interlocutor and note, (17th January 1837): ‘The Lord Ordinary advocates the cause, and recalls the interlocutors complained of: Finds, that under the contract entered into between the parties, and in the state of the facts admitted or proved, the respondent and pursuer was not entitled to present the application to the Sheriff, which is the foundation of this process; therefore dismisses the same, recalls the interdict so far as now necessary, and decerns: Finds expenses due, both in this Court and in the inferior court.’

The only other question, therefore, is, Had the respondent any possession of the goods themselves which could make an arrestment in his hands effectual to attach them? The Lord Ordinary thinks it very clear that he had not. The goods were in the advocator's own house, and the sale was under his own control. No more could be sold than he thought fit; and when articles were sold but not delivered, they still remained where they were, neither in the actual nor in the constructive possession of the respondent.

The end of the thing is, that the respondent, by his application to the Sheriff, just attempted to defeat the whole substance of the contract between him and the advocator. Very possibly he may have made it under some imagination of danger to himself. But a man is not entitled, on imagination of danger, to disregard the plain interest of the party with whom he has contracted, more especially after being fully warned that such a contingency might occur.