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William Dick having certain goods belonging to Spence, a bankrupt, in his hands, which being arrested by one Hunter, creditor to the said Spence, the said William is cited upon the arrestment, to make the goods furthcoming; and after that arrestment and citation, Thomson, another creditor of the said Spence, having, upon his bond registrate against Spence, by virtue of the Lords' letters, poinded the same goods, out of the said William Dick's cellars in Leith, where they were the time of the arrestment preceding, and also at the time of the poinding; the said William being convened by the arrester, to make the arrested goods furthcoming, and he defending, that the same were poinded from him, as said is; likeas the charger compeared, and in respect of his poinding claimed preference to the arrester.—And the arrester alleging, That he ought to be preferred to the poinder, in respect to his anteriority of diligence, in his prior arresting, and citation also of the haver before the poinding, which so affected the goods, that the haver could not have suffered any other to poind in his prejudice thereafter; seeing if that were allowed, it should tend to make all arrestments unprofitable, and should give liberty to the haver to elide all diligence of the creditors, and to give way to the payment of any other creditors he pleased to prefer, which were against justice; for the haver should not have suffered the poinder to enter within houses to poind, while his arrestment had been tried, whereupon he was summoned before the poinding, as said is, and the collusion of the haver with the poinder is manifest herein; likeas he offers to prove by William Dick's oath, that by express paction betwixt him and the poinder, they convened and agreed together, that he should give way to the poinder to poind, and make open doors to him for that effect, to the effect he might be preferred, and the other creditor prejudged, which was not lawful to him to do; and the time of the said arrestment, he took the poinder expressly bound to warrant him of the said prior arrestment, and of all danger which he might incur thereby; and after that agreement, the said William Dick sent down his servant to make his cellars open, that the poinder might have free access thereto, and so poind, which discovers a manifest partial proceeding of the said William Dick's, and that the poinding was done by his gratification of one creditor to the prejudice of another, which fraudulent dealing is always prohibited by law; notwithstanding of which allegeance for the arrester, (which was repelled) the Lords preferred the posterior poinder to the prior arrester and prior citation, for the same was found no impediment to another creditor thereafter to poind; and this gratification of the haver was not respected, because it was not found, as it was qualified, to be such a deed as might derogate to the arrester's lawful diligence, except that he had refused to suffer the arrester to have the like liberty, which he granted to the poinder, if the arrester had desired the same, which not being done, the haver was not found to have done any unlawful act, permitting the poinding to have its own course, which was an execution lawfully used, and done by the authority of a sentence of a Supreme Judge, which he had no necessity to have staid.
Act. Gilmour.Alt. Stuart et Nicolson.Clerk, Scot.
Fol. Dic. v. l. p. 178. Durie, p. 760.
