BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v Stewart [1835] CA 13_483 (17 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0483.html Cite as: [1835] CA 13_483 |
||
[New search] [Help]
Page: 483↓
Subject_Poinding—Mora—Title to Pursue—Process.—
1. A creditor, after executing a poinding, allowed sixteen days to elapse before reporting it to the sheriff, and no sufficient explanation of the delay was given—held, that it was null, though the competing and objecting creditor had not executed his own poinding at the date when the report of the poinding was made. 2. Question, what is the true construction of § 4th of the Bankrupt Act, in regulating the terms of a warrant for publication and sale, following on a reported poinding. 3. Warrant to sell, being granted, upon publication, for “at least six days before the day of sale,”—Question, whether this warrant was regularly executed, the publication being completed on 31st July, and the sale having taken place on 6th August. 4. Plea, of a prejudicial nature, not having been stated until after the record was closed, and the Lord Ordinary's judgment was under review—held too late, and party not allowed to found on it.
On the 11th of July, 1831, John Stewart, who was a creditor of John Izatt, portioner in Dollar, by bill for £289, executed a poinding of the growing crop on Izatt's farm, and also of certain household furniture, all situated in Clackmannanshire. He reported the poinding on the 27th of July, and of the same date obtained warrant of sale from the Sheriff of Clackmannanshire in these terms: “Grants warrant to the petitioner, at the sight of the clerk of court or his servant, at any time not less than
In the mean time, on 30th July (being the third day after Stewart had reported his poinding, and the day on which the sale was advertised through Dollar), Elizabeth Miller, who was a creditor of Izatt by bill for £30, with five years' interest, and expenses, executed a poinding of a portion of the same articles which fell under Stewart's poinding—the appraised value being £46, 10s. Thereafter, in December, she raised an action of reduction of the execution of Stewart's poinding, dated 11th July, the warrant of sale dated on the 27th, and the interlocutor of 9th August, approving of the sale. She farther concluded either for restoration of the effects poinded by her, and sold and carried off by Stewart, or for payment of £93, being the double of their appraised value, in terms of the penalty imposed by the bankrupt act upon a party who disappoints a poinding by carrying off the goods.
The reasons of reduction were—
1. The execution of poinding was null, because it was not reported “forthwith,” as enjoined by the statute; but sixteen days had elapsed before it was reported. At least the poinding was invalid, in a question with the pursuer, by this mora. The prior execution of the defender's poinding could not in itself cut off the right of the pursuer to affect the goods, because such execution did not transfer the property of the goods to the defender. 1
2. The terms of the warrant of sale were inconsistent with the statute, which required that the sale should be posterior to publication—such publication being not less than eight, nor more than twenty free days from the date of the order. But the Sheriff had made no such provision as to the publication; on the contrary, he had applied to the sale those provisions which the statute applied to the publication. 2
_________________ Footnote _________________
1 Samson, May 15, 1822 (ante, 1. 445, or 381, New Edit.)
2 Carmichael, Feb. 10, 1821, F.C.
3. The sale was not made in terms of the warrant, as six free days did not elapse from the publication at the parish church on 31st July, to the sale on Saturday following, the (6th of August.
The defender answered—
1. No greater mora occurred in reporting the poinding than was usual in the district. At all events, there was no such excessive delay as to justify the Court in annulling the poinding, as the statutory word, “forthwith,” necessarily admitted of some latitude, and the extent of latitude was discretionary. But separately, the poinding was reported, and warrant of sale obtained, three days before the pursuer executed her poinding at all. In a question with her, therefore, no mora had arisen, as it was jus tertii to her how long an interval elapsed between the execution and the report of a poinding, both of which were prior to her execution of poinding. 1
2. The warrant of sale was consistent with the terms of the statute.
3. The advertisement of the sale was made agreeably to the warrant.
The defender also pleaded, that the pursuer had neither title nor interest to insist on payment of the £93 claimed, which greatly exceeded her whole debt.
The Lord Ordinary “sustained the defences, assoilzied the defender, and decerned; and found expenses due.”
_________________ Footnote _________________
1 2 Bell, 61.
* “The defender's poinding was executed on the 11th July, 1829, and the goods were then adjudged to him. It was reported on the 27th July. Warrant of sale was granted on that day. It ordained publication to be made not less than eight days from that date, nor more than twenty; and the Sunday publication to be six days before the sale.
“The pursuer poinded on the 30th July—that is, three days after the defender's poinding had been reported, and the warrant of sale granted.
“The question is, whether the pursuer has a sufficient legal interest, and sufficient grounds on the merits, to set aside the sale as illegal, and recal the goods, or their value, for her own benefit.
“1. Did the defender's poinding fall in toto, and become a nullity, on the ground that sixteen days elapsed before it was reported to the Sheriff, the statute requiring the messenger to report it ‘forthwith?' The pursuer must make out absolute nullity, otherwise the objection will not avail her; for her own poinding was not used, till three days after the defender's had been reported. The question might have been nicer, if either the pursuer had poinded before the report, or the debtor had disposed of the goods. Here the point is much narrower—whether, the goods remaining, and no mid-impediment, or other interest, being raised, it was incompetent to report the poinding on the 27th July, on the ground that it bad become a nullity by the delay of sixteen days? The Lord Ordinary can find no warrant for this in the statute and no authority for so construing it.
“2. Was the sale null, on the ground that there were not eight free days between the day appointed for it, and the day of publication?
“(1.) If the poinding was validly reported, it may well be doubted, whether the pursuer has a legal interest to state the objection. For the value of the goods sold was not half the defender's debt; and his poinding being preferable—there being no question of pari passu preference—the pursuer could have taken nothing if no sale had taken place.
“(2.) The case of Carmichael v. Johnston, February 10, 1821, seems to be decisive against the objection. It was there held and decided, that the eight free days from the date of the order of sale, mentioned in the statute, refer to the publication, and not to the sale—which the Lord Ordinary understands to mean, that the publication must be not less than eight nor more than twenty days after the order—leaving the time between the publication and the day of sale to be regulated by the subsequent words in the statute, ‘at such time and place as circumstances may require.’ He can make no sense of the decision on any other construction, though it seems to have been misunderstood.
“3. Was the sale null, because the Sheriff's order bore, that the publication on the Sunday should be at least six days before the day of sale; and the publication being on the 31st of July, the day of sale was Saturday the 6th August?
“(1.) The same objection of want of interest applies as in the other case. The pursuer is not in the right of the debtor; and being excluded by the prior poinding, she suffers no injury.
“(2.) The words in the order, which are not statutory, do not require six free days to intervene, but only that the publication shall be six days before the sale. Where a certain number of free days are required to intervene, it is usual, in the statutes, to specify this—as, in this act, as to the eight days, in the old election statute, 35 Geo. III. c. 65, § I, as to the publication of the writs, and other similar cases. From Sunday to Sunday would leave six free days intervening. But where six days, simply from and after the Sunday of publication, are mentioned, the construction cannot well be the same; one of the days must be reckoned in the six, otherwise, in this, case, it would, in fact, require seven free days intervening. But, according to the analogy of the law, in the case of death-bed, reductions on the act 1696, &c., the Lord Ordinary thinks, that both the day of sale and the day of publication are not to be excluded, on the principle of dies inceptus, &c.”
The pursuer having reclaimed, the Court ordered minutes of debate, on advising which their Lordships expressed an opinion, that, though the word “forthwith” in the statute was an indefinite term, and must be, to a certain extent, variable according to circumstances, yet the lapse of sixteen days before reporting the poinding was clearly, in the circumstances of this case, a violation of the injunction of the statute, unless a special explanation of it could be given.
The Court, “before answer, appointed the defender to box a minute explaining the cause of delay of sixteen days in reporting the poinding to tie sheriff.”
The defender then stated that the chief part of the articles poinded consisted of growing crop, and that it admitted of more accurate appraisement, in proportion as it approached maturity. But, as the sale, according to the practice of the Sheriff Court, necessarily followed within twenty days after reporting the poinding, it was more just to the debtor, and more expedient, to delay the report of the poinding to the moderate extent which had occurred. Such delay was common in practice, and was often a beneficial and humane indulgence to the debtor.
He farther pleaded, that the pursuer had never made a report of her own poinding, and therefore the objection of mora applied more strongly to her than to him, especially as she had not brought her reduction till December, 1831.
The pursuer answered, that the crop was sufficiently near maturity to admit of the defender's poinding having been carried on without any delay. And that she could not be held to be in mora, seeing that the whole poinded subject was carried off by the defender's sale. But, separately, this plea was of a prejudicial sort, and it was now too late to state it.
The Court found the poinding null, and remitted to the Lord Ordinary to proceed quoad ultra.
Solicitors: Wotherspoon and Mack, W.S.—T, and T. Darling, W.S.—Agents.
