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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Knight v Green [1835] CA 13_342 (27 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0342.html Cite as: [1835] CA 13_342 |
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Page: 342↓
Subject_Poinding.—
1. Form of execution of poinding, which held sufficiently to set forth compliance with the requisites as to leaving for the common debtor a schedule, with a note of the poinded effects, and their appraised value. 2. By Lord Ordinary, and acquiesced in—A poinding inept as to certain trunks containing a variety of articles, where the appraisement was of the trunk and its contents in a slump sum, without a valuation of the several articles.
William and
Samuel Green, merchants in Castle Douglas, in May 1833, on the dependence of an action for payment of £30, at their instance,
“Therefore I passed, with the appraisers and witnesses afternamed and designed, to the premises respectively occupied by Samuel Mouncy and Alexander Johnstone, carriers in Castle-Douglas, and to Hillowton, by Castle-Douglas, and then and there respectively, after my crying of three several oyesses, making open proclamation and public reading of the said extract decreets and precepts of poinding, and executions of charge thereupon, and demanding payment in his Majesty's name and authority, and that of the Steward of said stewartry, and his substitutes, I apprehended and poinded the goods, gear, and effects after-mentioned, pertaining and belonging to the said William Augustus Clarke; and for valuing and appraising whereof, I adduced and designed Samuel Raleigh and Duncan Hossack, both residing in Castle-Douglas, to be appraisers for appreciating the same, to whom I administered the oath de fideli administratione officii, and who, having accepted of the said office, and sworn the said oath, took particular notice and inspection of the following effects, and both in one voice, without variance, valued the same at the particular avails and prices following, viz.:
In possession of Samuel Mouncy, carrier in Castle-Douglas—
Trunk and contents, comprising backgammon box, ledgers, papers, two crystal bottles, whip, about twelve printed books, a quantity of music-books, &c., valued at … . £110
Trunk, covered with black leather and brassnailed, with contents, comprising bed and table linen, towels,
books, flageolet, &c., … 2 2 0
Trunk, with contents, comprising mathematical instruments, gun and case, clothes, &c., . . 110
In the possession of Alexander Douglas, carrier, Castle-Douglas—
Trunk with contents, comprising fourteen kitchen Carry forward, £4 4 0
Brought forward, £4 4 0
towels, seventeen chamber towels, chimney ornaments, maps of Scotland, glass lamp, little decanter, framed print, one pair pillowslips, two pair sheets, tablecloth, two old grey hats and a straw hat, a fishing-basket, shooting-gaiters, sea-shells, backgammon box, gimlet, fishing-rod, pair of spurs, and pincers, twelve volumes of books, four copy-books unused, whip, &c., shells, nine towels, two tablecloths, two pair trowsers, two pair sheets, five table-napkins, three pillowslips, four kitchen towels, scent-bottle, broken ornament, a chess-box, two table-napkins, a pack of cards, seven chamber-towels, two and a-half pair sheets, and two pillowslips, . . 3 0 0
Backgammon-box, … . 0 5 0
Hat, . .0 2 6
At Hillowton, in possession of Allan Bell—
Phaeton or 4 wheeled pony gig, . . . 10 0 0
Harness for do.,. . . . . 2 0 0
Lady's riding saddle, . . . . 10 0
Box with carpenters' tools, . . . . 0 15 0
£21 6 6
Making in all the sum of £21, 6s. 6d. sterling money, towards payment of the said debts; thereafter I made three several offers back of the said effects so poinded, to the said William Augustus Clarke, or to any other person in his name, who would compear and pay the said debts, or the value to which the said effects were so appraised and estimated. But none compearing for that effect, nor to claim right to the said effects, and depone that the same belonged to them, therefore I, by virtue foresaid, and of my office, adjudged, decerned, and declared the said poinding to be completed with the usual solemnities of law, and the effects so poinded to be the property of the said Samuel M'Knight and James Mure, as assignee foresaid, poinding creditors. And I ordain them to remain where poinded, till a warrant of the Judge Ordinary be applied for and obtained for their being sold; and I made certificate to the said William Augustus Clarke, and all others whom it effeirs, that if he, she, or they intermeddle with, disposed upon, or embezzled the said effects, they would be liable in double the appraised value, in terms of the statute made anent poindings. And I made, subscribed, and left for the said William Augustus Clarke, with his wife, within the house in Castle-Douglas, occupied by her and his family; and I delivered to each of the said Allan Bell and Alexander Johnstone, both personally apprehended, and left for
A warrant of sale was thereafter obtained by M'Knight and Mure, whereupon William and Samuel Green presented a petition to the steward, praying to have the warrant recalled, on the grounds, inter alia—
1. That the execution did not bear that “a schedule of the poinded goods, and note of their appraised values,” had been left for the common debtor, as required by the bankrupt statute; and
2. That the appraisement of the trunks and their contents was in slump, without any special valuation of the several articles contained in them.
To this it was answered—
1. The omission to comply with the provision as to leaving a schedule of the goods, with a note of their appraised value, does not infer a nullity of the poinding, which the statute assumes to be completed before that part of the proceeding comes to be performed; but, besides, there is no particular form of doing this required, and all that is necessary is, that sufficient information on the point be given to the common debtor; while here the execution, bearing that a copy of intimation of the execution of the poinding, containing a note of the effects poinded, which, as engrossed in the execution, had the appraised value attached, did sufficiently import that a note of the poinded effects, with their appraised value, had been left; and
2. That the slumping a variety of small articles together, and including them in one valuation, was not an inept proceeding, and did not infer a nullity.
The Steward pronounced this interlocutor:—“Finds that the execution of poinding is irregular; first, in respect of the manner in which, in terms of it, the goods poinded appear to have been appraised, namely, not by each article, or set of articles of the same description being appraised separately, but by their being, in some instances, appraised in slump, as enumerated, with the addition of others not specified, but comprehended under an ‘&c.;’ and in another instance, by their being appraised in slump, or under one head, comprehending a great variety of different kinds of articles; and, secondly, in respect that the execution does not bear that a note of the appraised values of the poinded goods was left with the debtor, or those in whose custody the goods were, but merely a note of the goods themselves, and therefore confirms the interdict prayed for, and prohibits and discharges the respondents from selling, or otherwise interfering with the poinded effects, and finds them liable in expenses, of which allows an account to be given in between and next court.”
M'Knight and Mure, thereupon, brought an advocation, in which the
Lord Ordinary pronounced as follows, adding the subjoined note: *—“Advocates the cause; recalls the interlocutor submitted to review; finds that it is not a nullity fatal to the diligence, that the messenger did not state in his execution that he had left a note of the appraised values with the debtor or custodiers; but finds that the trunks, with their contents, were not duly poinded by the messenger, in respect that the articles contained in them being of various different kinds and values, were not separately valued by the appraisers; and with these findings, appoints the cause to be called.”
Greens having reclaimed, the Court appointed minutes of debate, chiefly with reference to the alleged practice of setting forth in executions of poinding a note of the appraised values. The practice appeared to be very variable, though in a great many instances there was no special mention in the execution of there being a note of the appraised values contained in the schedule left.
_________________ Footnote _________________
* “The Lord Ordinary can find no case where it has been held that the omission to state in the messenger's execution of poinding, that he left a note of the appraised values with the debtor or custodier, is a nullity of the poinding. No suck nullity is declared by the bankrupt act; and as this is a part of the procedure by the messenger after he has so far completed the poinding, and declared the poinded effects to be the property of the poinding creditors, the Lord Ordinary is not inclined to hold that the proceedings are null on account of this omission. It is true that, for the omission of what may be thought even of less importance, it has been sometimes held that an Inhibition is null. It having been so decided, these precedents must be followed, but this is no ground for extending such critical effects to another species of diligence; and there is this difference, that the diligence of inhibition enters the records, and affects the landed rights of the country, and it may be held that more than ordinary precision is required for securing the effects of such diligence. The other ground on which the Steward rests his judgment seems in this instance well founded; but the Lord Ordinary does not mean to introduce any greater strictness than has hitherto been observed, or the nature of the case admits of. It may be impossible, as in the case of a poinding of a flock of sheep, or the contents of a stack-yard, to be very minute and particular as to each article ; but in the present case, it is quite clear that the appreciation was not of each article, as easily might have been, but mere guess work. Upon looking into the execution, It would appear that the objection which has been sustained only applies to the trunks and their contents. Besides, it was stated that there were other objections to the procedure in the poinding,”
every thing was done which the statute required on the face of the instrument, so far as regards there being a note of the appraised value. Whether it was property appraised is a different question; but I am satisfied it is sufficiently set forth that a note of the appraised value was given, according to the intention of the statute.
The Court accordingly adhered.
Solicitors: John Ronald— William Dalrymple—Agents.