Whether a transaction, with a view to settle the debt, ought to stop a poinding?
Click here to view a pdf copy of this documet : PDF Copy
A creditor being about to poind, entered in a communing with the debtor's wife, (himself being out of the way for fear of caption) who gave the creditor a bond due to her husband; but he resolved to try the sufficiency of the debtor in the bond, before he would take it off for payment; and upon trial returned the bond to the wife, and then immediately executed his poinding. The debtor whose goods were poinded, did thereupon raise an action of spuilzie, upon this ground, That the poinding was executed before the treaty of communing was fairly given up, whereas it should have been delayed for some short time after the communing blew up, that the debtor might have taken some other course for satisfying the debt, and preventing the poinding; which is prejudicial and destructive to a merchant.
Answered; That a friend of the debtor's having signified his willingness to make over to the creditor the right of a bond, in satisfaction of what was owing him, who remitted to his writer to expiscate the condition of the debtor in the offered bond, and he having reported that the bond was not sufficient, the creditor was not obliged to stop execution of the poinding, and allow the debtor an opportunity to pack up his goods; especially the defender being informed, that the pursuer had made a disposition of all his goods to other creditors, or persons in trust.
The Lords, before answer, allowed the pursuer and his wife to depone upon the quantity and value of the goods poinded, (in respect it was alleged, that some goods were taken away that were not contained in the execution of poinding) reserving the modification of all to the Lords.
