George Gordon, Writer in Edinburgh, v. John Bogle, Writer to the Signet
Date: 19 February 1724 Case No. No 130.
A debtor apprehended by caption, delivered to his creditor goods out of his shop, in payment. The creditor found not liable to repeat to other creditors, on either of the bankrupt statutes.
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James Tweedie, merchant in Edinburgh, being debtor to William Brook and Company, merchants in London, and likewise to Samuel Dawson and Jeremiah Lupton, diligence by horning and caption was used against him by Mr Gordon; factor for Brook and Company, and also by Mr Bogle, trustee for Dawson and Lupton: Mr Bogle, in prosecution of his diligence, being determined to poind the debtor's goods, was prevented by his delivering him such quantities as was thought would answer the sums charged for, which he gave to John Robertson, merchant in Edinburgh, to be kept for the use of his constituents till they should be disposed of: Mr Gordon coming in a few days thereafter to Tweedie's shop in order to poind, found nothing therein for his purpose, but, understanding what had been done, he arrested in Mr Bogle's hands, upon which Mr Bogle caused poind the goods in the possession of the said John Robertson.
In an action of furthcoming at Mr Gordon's instance, he insisted, That Mr Bogle should be liable to him in payment of the sums due to Brook and Company, or the value of the goods abstracted, upon the acts of Parliament 1621 and 1696, since his poinding and payment was disappointed by a voluntary deed of the common debtor; for though Mr Bogle might have had a legal way of affecting the goods, yet he having neglected that, and contented himself with a voluntary conveyance, the law must take place, and the pursuer's legal diligence be preferred.
It was answered for Bogle, That the payment made by the debtor was not voluntary, since it was to secure himself from a caption and the bad consequences of a formal poinding; nor was it fraudulent because made to a creditor equally preferable by his diligence at the time of the delivery of the goods; and therefore in no sense could it fall under either of the statutes.
The Lords found that Tweedie, the common debtor, being apprehended by a caption at Mr Bogle's instance, might lawfully pay Mr Bogle, by delivering him goods to the value of his debt; and that Mr Bogle was not liable to repete, on the acts of Parliament 1621 or 1696.
[This interlocutor was reclaimed against, chiefly upon this ground, That it did not appear that, ever Mr Bogle's caption was put in execution:——The Lords appointed the petition to be answered; but parties agreed.]
Reporter, Lord Dun.Act. Jo. Horn.Alt. Dun. ForbesClerk, Mackenzie.
Fol. Dic. v. 3. p. 52. Edgar, p. 36.
