The property of a third party being poinded, may be reclaimed without the necessiy of a reduction.
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Welsh and Cuming caused a poinding to be executed, of a number of horses in the possession of John Hogg their debtor. Among these, there was one which proved to be the property of Harkies, as had previously been intimated by Hogg.
Harkies having brought an action of spuilzie for having the horse restored, &C the Sheriff of the county before whom the cause came, pronounced this judgment: “In respect it appears, that at the time of the poinding, the horse libelled was in the possession of John Hogg the debtor, and that there is a regular execution of poinding produced, finds, that it is beyond the jurisdiction of the Court to set aside that poinding, and therefore dismisses this action as incompetent.”
The pursuer presented a bill of advocation, on which the following deliverance was given by the Lord Ordinary on the bills: “Finds, that as the poinding was res inter alios acta as to the complainer, who was no party to it, it cannot affect him in any respect, and consequently that he is not obliged to bring a reduction of it, or precluded from bringing an action for recovering possession of his horse in any way competent to him before it was executed; therefore refuses the bill, and remits to the Sheriff, with instruction to vary his interlocutor, sustain process at the complainer's instance, and do therein as to him shall seem just.”
In a reclaiming petition it was argued, in the words of Lord Karnes, That “a poinding is of the nature of a decree; it is a sentence of a compent Judge, adjudging and decerning the goods to belong to the creditor; and this decree cannot be taken out of the way otherwise than by a proper reduction,” Carrie, No 12. p. 6206. And this doctrine it was endeavoured to support by the authority of Lord Stair, who denominates the messenger ‘Judge in the execution of poinding,’ B. 4, Tit. 30. § 6.; and of Mr Erskine, who states ‘the adjudication and delivery by the messenger, as vesting the creditor with the full right of the goods,’ B. 3. Tit. 6. § 24.
The Court were unanimous in the opinion, that in such cases it is competent for the owner to reclaim his property in a petitory action, and an illustration was given from the adjudication of lands that did not belong to the debtor, where the proprietor, without resorting to an action of reduction, would be entitled to be assoilzied from a process of mails and duties at the instance of the adjudger.
The petition was therefore refused without answers
Lord Ordinary, Dreghorn,For the Petitioner, Elphinston.
Fol. Dic. v. 4. p. 237. Fac. Col. No 92. p. 167.
