Holograph bond does not prove its own date against an arrester.
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John Bell having arrested all goods and sums belonging to Smith his debtor in the hands of Williamson and Fleming in Aberdeen, and pursuing for making forthcoming, they depone, that the time of the arrestment they had only in their hands some pieces of English cloth, a part whereof was impignorated to Williamson for payment of a sum conform to a ticket produced, and that Smith being debtor to them in several other sums, Williamson assigned his sums to Fleming, who pursued Smith before the Magistrates of Aberdeen, and having obtained decreet, did poind the cloth, both in Williamson's hand, and in Fleming's own hand, for the same debts. At the advising of the cause it was alleged for Bell, That these decreets being posterior to the arrestment, and obtained by collusion, to prevent the pursuer's more timely diligence by arrestment, no respect ought to be had thereto, seeing the persons in whose hands the arrestment was made did neither intimate to the arrester, that a pursuit was moved upon the said debates, whereby Bell might have raised double poinding, nor did they raise double poinding themselves, which if they had done, he would have been preferred, and excluded any posterior diligence; for albeit poinding may be used after arrestment, yet where there is collusion by the person in whose hand the arrestment is made, to prefer one creditor to a more timeous diligence of another, that collusion can neither hurt that prior creditor, nor prefer the posterior; as if after arrestment laid on by the Lords' precept, and pursuit before them, another creditor should arrest by the precept of a Sheriff, or Bailie of a burgh, and obtain decreet before them, before decree could be obtained before the Lords by the most exact diligence, if upon the said decree of the inferior court, the goods arrested were poinded, the party in whose hands arrestment was made, would not be thereby liberated, unless he had raised double poinding debito tempore, which might have prevented the poinding; much more in this case where the defenders assign their sums, that the pursusr's arrestment may be anticipated by poinding of the goods in their own hand. It was answered, That the defenders had done no wrong, to endeavour their own preference, the assignee having pursued no process against them, but against Smith the common debtor for payment, and thereupon had poinded.
The Lords found that the foresaid poinding proceeded by collusion in favours of the parties themselves, in whose hands the arrestment was made upon holograph tickets granted by the common debtor, which prove not their dates to be prior to the arrestment; and therefore notwithstanding thereof ordained them to make forthcoming, except in so far as concerned that piece of cloth that was hypothecated, prior to the arrestment, and allowed the sum upon which the impignoration was made.
