After a poinding not opposed by the landlord, he cannot bring back the goods via facti.
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In this case the following point occurred, whether or not, after a poinding, the master is entitled, in virtue of his hypothec, within 24 hours via facti to bring back the goods.
And at first it was found, ‘That he was;’ on this reasoning, that the right to bring back de recenti was as broad as the right to retain, agreeable to the decision, December 11th 1672, Crichton contra the Earl of Queensberry, No 9. p. 6203.; and that a contrary judgment would render the hypothec of little use.
But upon a review, the Lords pronounced a contrary judgment, and found, “That after the property was transferred by a regular poinding, without any opposition then made by the heritor or any in his name, the heritor, or his factor, could not via facti, though within 24 hours, bring back the goods.
The case was put of a conventional pledge, poinded from the creditor hypothecarius in his absence, and no body in his name opposing it; it was thought that, in that case, nothing remained to the creditor but an action. A stronger case was also put, that the goods of a third party are poinded for the debt of another; and, even in that case, it was thought that the proprietor could not, after such poinding, recover his own goods via facti; and that the right of hypothec could not be stronger than the right of property in the supposed case.
The case of Crichton contra The Earl of Queensberry, was also observed to be different from that now in question; for that, in that case, the property was not at all transferred, only the tenant, who had two farms in tack from different heritors, had carried the stock of one of the farms into the other, whereas, here the property is by a proper diligence transferred, which no man can via facti reverse. It further occurred, that poinding was a public act, which excludes all suspicion of collusion, and that there is a method competent to the master, whereby, when he suspects the tenant, he may prevent the hazard of eluding the hypothec, namely, by application to the Judge Ordinary for sequestration; and for these reasons, the former judgment was altered, as has been said.
Fol. Dic. v. 3. p. 292. Kilkerran, (Hypothec.) No 4. p. 273.*** Lord Kames reports the same case:
A tenant's cattle being carried off by a poinding executed in June, the master having no other security for the arrears of the former year's rent, did via facti follow the poinder, and bring back the goods without losing a moment. In a process of spuilzie against him at the instance of the poinder, his defence was, that the hypothec upon cattle for the arrears of the former year's rent was still subsisting, and that detention is not only implied in the nature of the hypothec, but also a power of bringing back the goods de recenti; otherways a hypothec upon a tenant's corns and cattle would avail little. And the decision, Crichton contra The Earl of Queensberry, No 9. p. 6203, was appealed to, where a landlord was justified for bringing back his tenant's goods via facti, which under cloud of right were carried off by the tenant himself. The Lords were all of opinion that the decision, Crichton contra The Earl of Queensberry, is right. But the doubt was, whether, in any case whatever, goods carried off by a poinding can be seized via facti. The case was put, of a poinding for any common debt, where goods that belong not to the debtor happen by mistake to be poinded; yet that even in this case the proprietor can not via facti seize upon his goods, but must claim by a process. This consideration determined the Lords to repel the defence.
A poinding is of the nature of a decree; it is a sentence of a competent judge, adjudging and decerning the goods to belong to the creditor, and this decree cannot be taken out of the way otherway than by a proper reduction. This consideration lays open a remarkable difference betwixt a title acquired by private consent, and a title acquired by authority of a Judge. If my goods are stole, I can take them back via facti, even from a bona fide purchaser; but if the goods be poinded, supposing it even from the thief himself, there are no means of coming at the goods but by a process.
Rem. Dec. v. 2. No 67. p. 104.*** D. Falconer also reports this case:
Thomas and John Andrews, tenants to Alexander Fairly of that Ilk, being debtors to Thomas Currie of Annanhill, he poinded the cattle upon their joint possession.
The next day after the poinding, William Crawford factor on the estate carried back the poinded goods from off the possession of the poinder, who brought against him an action of spuilzie.
The Lord Ordinary, 14th February 1744, ‘sustained the defence of hypothec, and assoilzied.’
A reclaiming bill was presented, and answered, in which several things were pleaded on both sides; but the point argued amongst the Lords was, whether the poinding being complete, an heritor could at his own hand carry back the poinded goods ?
Urged for the defender, That an heritor had undoubted right of retention, which would be of small use to him, if he could not de recenti recover; and so was decided 11th December 1672, Crichton against The Earl of Queensberry, No 9. p. 6203.
For the pursuer, That an heritor could have no stronger right in virtue of his hypothec than an owner by his right of property, who could not at his own hand seize his own goods poinded, as belonging to another; and there was this difference betwixt the present case and that of the decision, that there the goods were not poinded, but carried off by the tenant from one possession to another. “ The Lords repelled the defence.”
Act. A. Macdouall.Alt. H. Home.Clerk, Gibson.
D. Falconer, v. 1. p. 107.
