Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMPETITION.
Subject_3 Competition betwixt an arresting Creditor, who had obtained a warrant to sell the goods arrested, and a creditor who afterwards poinded.

Mrs Helen Stevenson
v.
Colquhoun Grant

Date: 26 June 1767

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[Faculty Collection, IV. p. 109; Supplement, V. 649. Kaimes's Select Decisions, p. 329; Dictionary 2762.]

Pitfour. There are two points; one that an arrestment does not prevent a subsequent poinding, even although a forthcoming should be raised: the other, if the goods are in manibus curiæ, that no poinding can proceed. The two decisions in the petition relate to the case of the goods being in manibus curiæ. In the present case, I thought that, although there was an interlocutor of the Ordinary for a sale, yet that nothing had been done in consequence of this interlocutor, not so much as any intimation of the order. If a bankrupt debtor has cattle in my inclosures, and if an arrestment is used in my hands, and a forthcoming brought, but no intimation made to the debtor, if he sells, the purchaser is safe. Such were the principles on which I proceeded, but now I incline to be of a different opinion: Upon a reconsideration of the case, I do not think a poinder is in the same situation as a purchaser. A poinder is going on in a course of legal diligence; he may be stopt, though a purchaser cannot. Here there is, in effect, an interlocutor in the forthcoming, though not extracted; arresters of goods, ipsa corpora, ought not to be in a worse situation than arresters of a sum of money. The order to sell implies a decreet of forthcoming.

Monboddo, I think that a purchaser of the goods would not have been safe, because the subject was litigious. But the doctrine of litigious will not apply to the case of other creditors. Although another creditor has inchoate diligence, I may poind in order to complete my diligence. My difficulty is, that the order granted by the judge is not equivalent to a decreet of forthcoming: if the goods had been sold, no doubt would have remained: but, in this case, they were still the property of the common debtor, and might therefore be affected by the diligence of the creditor.

Coalston. The legal effects of arrestment two-fold. 1st, To preclude the arrestee from disponing. 2d, To preclude the common debtor from disponing. But still it is inchoate diligence and no more. Legal proceedings in the forthcoming will not exclude poinding. The only question, Whether is the order of the judge equivalent to a decreet of forthcoming? It is not. Suppose that the debtor had granted a warrant to poind the goods, this would have hindered a poinding to proceed. The warrant of the judge is no more than the warrant of the debtor. My difficulty is as to the decisions quoted. Whether am I to follow my own ideas, or the decisions?

Gardenston. For the present judgment of the Ordinary. I cannot make a distinction where there is no real difference. The style of a judgment, when goods are to be sold, must be different from that of a decreet of forthcoming in a sum of money; and the only difference is in style, for the same thing is intended in both cases.

Kaimes. When goods are once in manibus curiæ, no poinding can proceed. Why so? because such goods are under the power of the Court. And how can a poinding deprive a Court of that power?

Repel the defence on the poinding, and remit to the Ordinary.

Act. Swinton, tertius. Alt. A. Lockhart.

Diss. Monboddo.