Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT.
Subject_3 23d Geo. III. c. 18. - This Act provides, that a party desirous to be conjoined in a poinding, must summon the poinder within a limited time. The appearing in an action, and producing an interest, found equivalent.

Bertram and Gardiner
v.
Hugh Finlay

Date: 17 January 1788

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll. X. 27; Dict. 1250.]

Justice-Clerk. It often happens in multiplepoindings that all parties having interest are not called, but that such persons appear, claim, and are preferred. In inferior courts, one arrestee pursues a forthcoming, and yet other creditors appear and compete: a summons, required by the statute, is still less than a judicial demand, which has been made here. After having made a judicial demand, a summons would have been superfluous.

Eskgrove. The first clause in the statute, with regard to arrestments, allows the production of an interest in the forthcoming. In a poinding there is no occasion for a forthcoming; it is required that the debtor be called: creditors may produce their interests,—that is equivalent to a summons. In the Act 1662 the word cite is used; and yet it has been found that a creditor, named in the testament, may be received within six months, although never cited.

On the 17th January 1788, “The Lords repelled the objection.”

For Bertram and Gardiner, Wm. Tait. Alt. Ed. M'Cormick. Reporter, Stonefield.