Competition, James Corrie, Provost of Dumfries, with Robert Muirhead
Date: 13 February 1736 Case No. No 6.
Even an inchoate poinding, which was stopt without any fault of the creditor, was found to give a preference in competition with an arrestment first completed by a decree of forthcoming.
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James Muirhead, merchant in Dumfries, having failed in his circumstances, Provost Corrie, who was creditor to him, arrested in the hands of Alexander Gordon, who had the possession of some shop-goods belonging to James; and thereupon raised a furthcoming before the Magistrates of that town. During the dependence, Robert Muirhead, who was likewise creditor to James, changed him with horning; and, when the days were expired, he sent a messenger to Gordon's house to poind the goods belonging to his debtor; but Gordon stopt him, upon this pretence, that the goods were already arrested in his hands by Provost Corrie. Whereupon a competition having ensued, it was contended for Robert Muirhead, That he should be preferred to the Provost in the same way as if his poinding had been completed; seeing it would be unjust, if, after he had gone on as far as he could, until he was stopt, another should be allowed to step in and complete his diligence though posterior to his own. To illustrate which, a case was referred to, where an adjudger was, by the delays and artifice a debtor, stopt from completing his diligence until another had finished his first; notwithstanding whereof the adjudger was found not to be postponed, or the other creditor to have any preference to him; the reason of which applies directly to the point in hand, as it was by an unlawful act of Gordon's the poinding was stopped, and who, by his possession of the goods, was debtor or liable for them to the creditors, according to their diligence.
On the other hand, it was argued for Provost Corrie, That he behoved to be preferred upon his arrestment; because, 1mo, No poinding could have proceeded legally upon the diligence done by his competitor; as the horning at Muirhead's instance wanted what was very material, namely, the word apprise, which is necessary when any thing is to be poinded; as it must first be valued, a step that is previous to and different from the poinding itself; for which reason it is constantly inserted in all hornings. Neither do the words to poind and distrain imply a power to do every thing necessary in order to the poinding; seeing very often making open doors is necessary, and it requires a particular warrant for that purpose. 2do, The execution on the back of the horning is vitiated; and so null. It is true, a fair one has been put into the process since the competition commenced, but that cannot remove the objection; as the protest, upon which Muirhead rests his preference, especially relates to the execution on the back of the horning, after which he was not at liberty to give in a new one.
In the next place, Supposing these objections were removed, an offer to poind does not transfer the property; if a messenger is deforced, there lies an action against the deforcer; but, as crimes can only touch those who are guilty of them, a third party doing diligence cannot thereby be prejudged. And as to the case of the adjudger, no decision is referred to, from which the circumstances can be known; possibly it might have arisen from personal objections against the creditor's completing his diligence in collusion with the common debtor. But, whatever was in that, if an offer to poind could be considered as completed in any case, it would only hold where all is done that could be to make it effectual. Now, here the messenger omitted to provide himself with letters of open doors, whereby he might have opened the presses in which the goods were standing; and no hinderance or stop was put to the poinding other than this, that Gordon refused to open these presses.
Answered for Muirhead; The objections to the formality of his diligence can have no influence; for, 1mo, With regard to the vitiation, that is removed, by producing an original execution, wrote out fair the same day with the other, which the messenger abides by. 2do, There is nothing in the observation, that the horning wants the word apprise; as it bears to poind and distrain; nay, the word to poind, was sufficient warrant for doing every thing that made part of the poinding; and, where that is, the word apprise is superfluous; therefore, as his diligence is unexceptionable, his attempt to poind must be held as completed. Nor is it of any importance, that an endeavour to poind does not transmit the property; as that is suppliable by a decree of the Court, giving a preference in respect of the diligence inchoate and unlawfully interrupted. Neither had the messenger any occasion for letters of open doors, as he got voluntarily within the house, nay, within the very room where the goods were lodged; and, although the law knows what letters of open doors are, yet letters to open chests and presses is a novelty. Besides, he is not bound to tell whether he had such letters or not; as the messenger was stopt, not for want of them, bat on account of Provost Corrie's prior arrestment.
