LANDALE v FRANCIS and THOMAS LEA and Mandatary (Court of Session)

Thomas Richardson having absconded from Edinburgh, to avoid the diligence of his creditors, wrote to Mr Landale in the following terms, 6th August 1822:—‘Sir, I hereby give you full power to become trustee on my affairs, and that you shall see them sold to the best advantage, and the money arising therefrom to be divided among my creditors, as far as it will go, to pay my just and lawful debts.’

The creditors again met on 24th September; but the mandatary for F. and T. Lea did not attend. At this meeting, Mr Landale was elected trustee. ‘The meeting direct the trustee to prevent all preferences being taken, and for that purpose to apply for sequestration, if necessary.’ The trustee did present a petition for sequestration; but, as he understood that none of the creditors were attempting to obtain a preference, he did not proceed farther in that application, but realised the funds in the character of extrajudicial trustee, in terms of the minutes of the creditors.

A multiplepoinding having been raised in the name of one of Richardson's debtors, a preference was claimed for F. and T. Lea, in virtue of an arrestment used by them in the debtor's hands on the 2d August. This preference was opposed by Landale, as trustee for Richardson's creditors, who—

Pleaded —The claimants having, by their mandatary, attended the meetings of the bankrupt's creditors, and acquiesced in the measures proposed by them, and thereby prevented them from applying for a sequestration to prevent preference, are barred personali exceptione from pleading any preference in virtue of their arrestment, which they concealed from the other creditors till after the expiry of sixty days. This preference could have been defeated by the creditors applying for sequestration, had they not been deceived by the claimants.

Where a creditor, by acquiescence in general measures, deceives the other creditors into a line of conduct which, had they been made aware of opposition, they would not have pursued, such creditor is barred from pursuing separate measures; Bell , vol. ii. p. 441; M'Vicar v. Bailie's creditors, 18th February 1762; Dr Heriot v. Farquharson, 27th June 1766; Mor. p. 12,404; Croll's trustee v. Robertson, 7th May 1791; Fol. Dict. vol. 4. p. 160; Mor. p. 12,404; Campbell v. Simpson, 5th July 1791; Mor. p. 11,683; Fol. Dict. vol. iv. p. 131; Anderson v. Starkey, Fletcher, and Company, 2d March 1813.