Scottish Court of Session Decisions

In 1829 Thomas Thomson, innkeeper at Kinross, granted a bond and disposition of security for £1800, over certain land and houses near Kinross, to Alexander Smith, residing at Perth. In 1830 he granted to Smith, another bond and disposition in security, over the same subjects, for £1100. Smith was duly infeft, in both securities. Afterwards, in 1831, Thomson granted a bond and disposition in security for £300, to James Beveridge, surgeon in Hamilton, and another bond and disposition in security for £1261, to Skelton and others, who subsequently conveyed it to John Wright Williamson, writer, Kinross. Thomson became insolvent, and several meetings of his creditors were held, at which it was resolved to adopt common measures, and prevent preferences among the personal creditors some of whom were using separate diligence. For this purpose it was arranged, inter alia, that a poinding of the ground should be used on the heritable bonds of Beveridge and Williamson. In July, 1834, Beveridge and Williamson, having previously raised, on each of their heritable bonds, a summons of poinding the ground before the Sheriff of Kinross, and having obtained decree, and raised and executed letters of poinding of the moveables on the ground in the natural possession of the debtor, obtained warrants of sale. They did not execute these warrants, but, in June, 1835, obtained a new warrant of sale, and advertised the sale. Alexander Smith, who was infeft under the two prior heritable bonds, obtained an interdict of the sale, and raised a summons of poinding the ground, which he brought before the Court of Session, in respect that Thomson was now dead, and his oldest son was abroad. Beveridge and Williamson entered appearance in this action, and were found entitled by the Lord Ordinary (Corehouse) to state defences against it. In their defences they pleaded, 1st, That their poinding, was not a personal poinding, and that, even in competition with a poinding proceeding on a prior infeftment, it was not to be judged by the same rules as a personal poinding, either in regard to its completeness or its effects. They had not only, each, raised their summons of poinding the ground, but had obtained and extracted decree, which alone was enough to give them a preference over a prior real creditor who had taken no step whatever. But they had farther raised letters of poinding the ground on their decree, and had executed these, attaching the moveables in the natural possession of the debtor, and had obtained warrant of sale. So long as the pursuer did not at least inchoate action or diligence on his security, he had no species of real right in, or to, the moveables on the ground, and held no nexus over them. And, at all events, after having allowed the defenders to proceed so far before he instituted any measures whatever, he was not entitled to be preferred to them or to compete with them, as to the moveables attached by their diligence. ¹ 2d. The pursuer was barred, in the special circumstances, by a personal exception from competing with them, as they alleged that he had, by an irregular interdict, prevented the sale from taking place, under their diligence, and should not be allowed to benefit by his own wrong.

The pursuer answered, that, in a competition between a prior, and a posterior, real creditor, the preference depended on the date of the infeftment, and nothing short of a completed transfer of the moveables on the ground, by a perfect diligence, could entitle a posterior real creditor to exclude a prior. In any such competition, the right of a prior real creditor was as clearly preferable to that of a posterior real creditor, as the right of a real creditor was, in competition with a personal creditor. It was therefore enough, if the prior real creditor judicially asserted his right by raising a summons of poinding the ground, at any stage before the posterior real creditor had actually sold the moveables under his diligence, and reported the sale to the Sheriff. As the defenders had not reached that stage, when the pursuer raised his summons of poinding the ground, he was entitled to be preferred to them, in virtue of the preference inherent in the priority of his sasine. ² 2. The defenders were exposed to a personal exception, because, in the special circumstances, they would be taking an unfair advantage of the pursuer, contrary to good faith and fair

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¹ Hay, July 7, 1824 (ante, III. 223), affd. 2 W. and S. 71; 2 Ross' Lect. 430, 436, 442, and 467; 2 St. 5, 8; 2 Bankt. 5, 7, and 24; 4 Bankt. 24, 39; 4 Ersk. 1, 11; 1 Ross' Lect. 385, 410, and 453; Lady Mary Bruce, Feb. 15, 1707 (14092); 4 St. 23, 15 and 20; 4 Bankt. 24, 43; Balf. Pract. 400, c. 17; 2 Ersk. 8, 32; Forrest, Jan. 1687. 3 Brown's Suppt. p. 140. A. S. Dec. 14, 1805, § 3; 2 Bell, 60 and 64; Stair (Ed. by Brodie), p. 800, notes; 3 Ersk. 6, 24; Clark, June 15, 1834 (ante, III. 143, or new ed. 96).

² Balf. Pract. 126; Kames' Law Tracts (4th ed.), p. 189 and 464; 2 Ross' Lect. 444 and 448; Kelhead, Nov. 2, 1748 (2786); 4 St. 23, 5,; Stair (Ed. by More), vol. ii. p. 211; 4 Bankt. 24, 42; 2 Ersk. 8, 32; Clerkington, Jan. 9, 1668 (10646); Tullis, June 18, 1817 (F.C.); Bell, Dec. 3, 1831 (ante, X. 100); Campbell's Trustees, Jan. 13, 1835 (ante, XIII. 237); Stair (Ed. by More, notes, vol. i. p. 211); A. S. Dec. 14, 1805; 2 Ross' Lect. 454; 4 St. 47, 25; Scotland, June 12, 1828 (ante, VI. 961); Steel, Feb. 2, 1831 (ante, IX. 371).

dealing, if they were allowed to found on their poindings to his prejudice.

The circumstances which gave rise to the plea of personal objection, hinc inde, were special and complicated. The Lord Ordinary (Cockburn) preferred the defenders. The pursuers reclaimed and the Court ordered minutes of debate, after which their Lordships altered the interlocutor, and found that the defenders were, in the circumstances, affected by the plea of personal exception; that they could not found upon the poinding, and warrant of sale, obtained by them; and that the pursuer was still entitled to the preference which was inherent in his prior infeftment. The defenders were also subjected in expenses. Their Lordships at the same time expressed an opinion that if there had been no personal exception involved, and if the question had merely been, whether the pursuer was entitled to be preferred, on his prior infeftment, notwithstanding that the defenders had proceeded so far as to obtain a warrant of sale, it would have required much consideration; and Lord Corehouse observed, that, in that case he should have proposed that there should be a hearing before the whole Court, in order to settle the point definitively.