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One Hunter, arresting in William Dick's hands some wares pertaining to James Spence his debtor, and pursuing to make the same furthcoming, and referring the summons to the said William Dick's oath, who granting the having of the wares, and the being thereof in one of his cellars in Leith the time of the arrestment, but declared that one Thomson, another creditor of the said Spence, had poinded the same out of his cellar, by virtue of a sentence, and intromitted with the same; and the pursuer answering, That after his arrestment, he ought not to have suffered any other to have intromitted with the said goods arrested, to his prejudice, but should have suspended against both parties, that they might have disputed their rights, which of them should be preferred;——The Lords found, That a prior arrestment was no impediment to any other creditor to execute his sentence, by poinding the same goods arrested before, and that the person in whose hands the goods were arrested, had neither reason, nor any necessity to have stayed the poinding, nor to have suspended upon double poinding; for no deed was done by him, to give any advantage to the one party before the other; for if any sums of money, or other thing had been in his hand, which he had given out of his hands without order of law, that would have been done upon his own hazard and peril; but here, where there was no accession of any fact done by him, in whose hands the arrestment was made, to further the poinder, which poinding he could not stay; therefore the arrestment was found could not make him liable to the arrester; but reserved to the arrester to pursue him who had poinded, for rendering or repeating of the goods, prout de jure.
Act. M'GilI & Sibbald.Alt. Nicolson & Stuart.Clerk, Scot.
Fol. Dic. v. 1. p. 178. Durie, p. 735.
