Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LEGAL DILIGENCE.
Subject_3 Poinding cannot proceed in name of the Assignee, upon a Horning raised by the Cedent.

Messrs Foggo and Galloway
v.
John Scott and William Oliver

Date: 7 December 1769

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[Fac. Col. IV. 362; Dict. 3693.]

Pitfour. The case of Stewart and Hay was deliberately considered: I remember it well; and the judgment of the whole writers to the signet was given unanimously. It is a right judgment. An attempt has been made to distinguish between the case of a horning and of a poinding; but the distinction is not solid. When we attend to the construction of letters from this Court, we must consider them as mandates. If they are mandates, they must be strictly interpreted. Here there is a question not only of mandatum, but of mandata jurisdictio. No more authority is given than to extricate the jurisdiction. A horning is a single act, wherein a messenger has no means of judging: in an apprising there is a tractus futuri temporis; and many things may occur, concerning which the messenger must form a judgment. But, in poindings, or the like, there is no occasion to give him a power to execute against B, when he is ordered to execute against A; nor to execute in the name of B, when he is ordered to execute against A. Where things occur, in which the letters cannot instruct the messenger, he must judge and execute at his peril. The case of Clapperton is not to the purpose; for the assignation, on which the diligence proceeded, was amissing, so that the only thing which supported the apprising was long possession: it could not be supported by the assignation, supposing it regular; for no such assignation was produced.

Monboddo. I always understood that messengers and sheriffs in that part are not different persons. Anciently, sheriffs executed all writs; afterwards, this was confided to messengers: they became sheriffs for a particular purpose. Where execution only is required, the messenger has the executive power alone: in apprisings and poindings, where more than simple execution is required, he has a judicative power. In apprisings, he who obtains assignation, even after assignation may have the possession adjudged to him; and the same ought to be the case as to poindings.

Coalston. A messenger cannot execute against an heir upon a diligence used against the predecessor: if so, how can he execute for the heir upon the diligence used by the predecessor? If we once depart from this principle, that our letters are a mandate, and to be strictly interpreted, I do not see where we are to stop.

Gardenston. I imagined that the usage, mentioned by the Writers to the Signet in 1745, related to arrestments alone, and not to poindings; but now I see the case to have been otherwise, and therefore would alter my interlocutor.

Auchinleck. I can see no reason for explaining the powers of a messenger so strictly. This would be a great bar in obtaining justice. The majus bonum of the public got the better of summum jus, in the case of apprising; why not so also in the case of poinding?

President. The question is, not as to the rights of parties, but as to the method of executing the diligence of this Court. There might be some difficulty in the case of assignees: here the case is as to executors. I have so much regard to practice in matters of that sort, that I cannot consent to alter it. The fixing this point does no harm, whether it be fixed right or wrong; but I do not wish to see vacillancy in our determinations, in matters of form. There is no utility in deviating from the rule by subtle reasoning. I call it subtle reasoning; because the writers, who give their opinion according to the interlocutor, do it not from their own knowledge of the practice, but from an argument in law, drawn from the analogy of the case of Clapperton.

On the 7th December, 1769, “The Lords sustained the objection to the poinding;” altering Lord Gardenston's interlocutor.

Act. D. Armstrong. Alt. R. M'Queen.

Diss. Auchinleck, Monboddo. No vote put.