WILLIAM JOHNSTON, (Jeffrey's Trustee) v MARGARET BRUCE & Ors, (James Dundas's Representatives) (Court of Session)

William Jeffrey raised an action against Galloway for a debt due by him, and used arrestments upon the dependence in Newall's hands, for the amount (among other sums) of the price of the oil still unaccounted for by Newall to Galloway. Mr Dundas, late Accountant-General in Excise, became cautioner in the loosing of the arrestment used by Jeffrey. Decree having been obtained by Jeffrey, a furthcoming was afterwards insisted in by him and his trustee, the pursuer Johnston, against Dundas and his representatives.

The representatives of Mr Dundas, the cautioner, resisted the action, particularly in so far as regarded the amount of the oil sold to Aitken and Brown, on the ground that there were not funds arrestable in Newall's hands, the price not having been paid.

Johnston reclaimed ; and having raised a question as to the state of the accounts arising out of the barilla transaction, noticed in the Lord Ordinary's interlocutor, the Court ordered cases. In the cases, further proof about the barilla being waived, the question was argued upon the validity of the arrestment, as arising out of the above facts.

Johnston's chief argument was, that Newall must be viewed in the situation of a trustee bound to account to Galloway; and the cases of Grierson, 25th Feb. 1780, F. C. ; Douglas, 29th June 1796, F. C., M. 16,213; and Gordon v. Innes, 13th Feb. 1740, M . 715; were referred to as to the competency of arresting the price of heritable subjects and personal debts in a trustee's hands.

The defenders pleaded , upon the facts as admitted, and the view taken by the Lord Ordinary—that Newall was not to be considered in the situation of a trustee having an absolute right to the oil; a mercantile factor or agent, who gets an indorsation to a bill of lading, merely to enable him to obtain possession of the goods, as factor, being different; I. Bell , 220.