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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kinnon v. Hamilton [1866] ScotLR 2_96 (21 June 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0096.html
Cite as: [1866] SLR 2_96, [1866] ScotLR 2_96
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SCOTTISH_SLR_Court_of_Session
Page: 96↓
Court of Session Inner House First Division.
v.
Facts:
Note of suspension of a poinding passed on the ground that the amount of effects poinded was excessive: Question—Whether it is necessary in a warrant of sale under a poinding to name the hour of sale.
This was a suspension of a poinding and warrant of sale granted by the Sheriff of Buteshire. The grounds of suspension were, inter alia, that the warrant of sale did not specify the hour as well as the day on which the sale was to take place, and that the respondent had poinded and had obtained warrant to sell all the complainer's moveable property, the appraised value of which was £72, 9s., for a debt the amount of which was only £13. The complainer offered consignation.
The Lord Ordinary (Mure) passed the note, and continued an interim interdict which had been granted. He observed in his note—“The poinding of effects of an appraised value upwards of five times the amount of the debt sought to be recovered is, in the opinion of the Lord Ordinary, of itself a very questionable proceeding. And when that is followed by a warrant of sale, in which no restriction is imposed upon the creditor as to the quantity of the effects which may be sold, and no precise time of sale is fixed—inasmuch as the hour of sale is left in the creditor's discretion—(Bell Com. on Statute, p. 22)—it appears to the Lord Ordinary that so much doubt is raised as to the legality of the diligence in the present case as to entitle the complainer to have the note passed upon the consignation offered being made. Kewley, March 8, 1843.”
The respondent reclaimed.
Burnet for him argued—The Personal Diligence Act only requires that the time of sale should be fixed by the Sheriff. That was done in this case, because the day was named. It was not essential that he should fix the hour of the day. But the hour of sale was duly advertised and intimated to the debtor six days before the day fixed. In regard to the amount of effects poinded, that was explained by the fact that the expenses of executing the diligence were considerable, and besides the debtor was in arrear to his landlord, whose agent had intimated that he intended to interdict the sale in order to protect his hypothec. It was therefore necessary to poind as much as would enable the creditor to take the landlord's objection out of the way, and also to pay his own debt and the expenses. Hunter v. North of England Bank, 12 D. 65.
Thoms, for the suspender, was not called on.
The Court adhered, on the ground that the poinding was excessive. In this case the creditor may have proceeded in good faith, but if what had been done were sanctioned, great oppression and injustice might be committed. No opinion was expressed as to whether it was fatal to the diligence that the hour of the sale was not mentioned in the warrant of sale.
Solicitors: Agent for Suspender— Wm. Officer, S.S.C.
Agent for Respondent— John Thomson, S.S.C.