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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Archibald Stewart v Thomas Foggo and William Galloway. [1766] Hailes 171 (2 December 1766)
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Cite as: [1766] Hailes 171
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[1766] Hailes 171
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LEGAL DILIGENCE.
Subject_3 Poinding by an indorser, in name of an indorsee, knowing him to be dead, is null, and not even capable to afford retention.
Date: Archibald Stewart
v.
Thomas Foggo and William Galloway
2 December 1766 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IV. p. 277; Dictionary, 8136.]
Pitfour. Poinding is null, as executed in name of a dead person. Retention is not a good plea. Compensation, and even retention, may be good
against an arrester; but, if the subject be wrongfully apprehended, I do not see how retention can be good. Tins would take away all difference between regular and irregular diligence. President. This case may be differenced from that of Magbiehill, but I do not like that decision. Arniston's opinion, as stated upon that case, in the collection of remarkable decisions, is different from what I understood to be his opinion.
Auchinleck. A man in the East Indies sends home a bill, diligence is done upon it, money is recovered;—it afterwards appears that he was dead when the diligence was used:—What will be the consequence? Again, at a poinding, it may be objected, that the creditor is in the East Indies, and is dead, yet no remedy in this case,—the diligence is null.
Kaimes. Here there are no termini habiles for retention; the money is in the hands of Oliver and Scott.
Coalston. This case may be attended with very important consequences. Diligence may very innocently go on in the name of a dead man; yet it is hard to get over the interlocutor. When I come to the possession of my debtor's effects, in a lawful manner, I may retain. In the case of Yeates, where goods, without authority, were put into the hands of a creditor, he was allowed to retain; but here the diligence itself was unlawful, and hence the possession was unlawful.
The Lords adhered to Lord Gardenston's interlocutor.
Act. R. Sinclair. Alt. D. Armstrong.
The electronic version of the text was provided by the Scottish Council of Law Reporting