a medical man. The presentation should take place as soon as the impediment is removed. And, of course, due notice should previously be given to the creditor, of the time and place at which to meet the debtor. And, if the non-fulfilment arises from the fault or neglect of the debtor, -for instance, the debtor's enlistment as a soldier, or his betaking himself to the Sanctuary,2-his cautioner will not be liberated.

After the liability of the obligant has been incurred, the creditor must keep in mind that the obligant is really and truly a cautioner, and must take care not to discharge the proper debtor, or even to grant him (by positive contract) time for payment of his debt, or other indulgence.3 The obligant, however, who incurs liability under a bond of presentation, has no recourse against a proper cautioner for the debt. The proper cautioner suffers by the failure to present the debtor, and is in no way responsible for the indulgence granted to him, nor for the non-presentation. On the contrary, the failure to present has taken away one of the legal compulsitors for enforcing fulfilment of the proper debtor's obligation, and the proper cautioner is relieved.*

EXCHEQUER

In reference to Exchequer causes, the Court of Exchequer Act,5 COURT OF which came into operation on 12th November 1856, has sundry pro- ACT OF 1856. visions as to diligence against the person, to which it seems necessary here to call your attention.

By sect. 38, all bonds or obligations in the Court of Exchequer form are declared probative, equally as if duly executed and attested; and all bonds or obligations to Her Majesty are capable of registration for execution, in like manner as if they contained a formal clause of registration; and all diligence and execution is competent thereon, equally as upon a bond containing such clause.

By sect. 28, the extracts of all decrees under said Act, and also the extracts of decrees proceeding on bonds or other obligations to Her Majesty, on which execution may competently proceed, registered in the Books of Session or of any Sheriff-Court, are to be, as nearly as possible, in ordinary form, so far as consistent with the provisions of said Act; except that decrees in favour of Her Majesty shall contain warrant to Sheriffs to charge and execute diligence in terms of the schedule (G) annexed to the Act, in lieu of the warrant to charge in ordinary cases. According to said schedule, it would appear that the Sheriff of any county may execute any decree, but the decrees may also be put in execution by any messenger-at-arms or sheriff's officer.

By sect. 29, the Sheriff, to whom a decree is delivered to be enforced, is required to put the same to execution with all due despatch, and to take all lawful and proper measures to enforce payment or implement

1 Henderson, 22d July 1710, M. 1809. 2 Douglas, 17th Dec. 1842, 5 D. 338. 3 See Dixon & Douglas, 12th Feb. 1847, 9 D. 679.

4 Graham, Feb. 1731, M. 3364; Smith, 11th Dec. 1811, F. C.

5 19 & 20 Vict. cap. 56.

by means thereof.
He is entitled to receive payment or implement,
and thereupon to discharge the decree, but is to account for his intro-
missions as therein specified.

By sect. 31, the Sheriff is empowered to cause charge the Crown debtor to pay or perform, in terms of the decree, under pain of poinding and imprisonment; and by sect. 33, at any time within year and day after expiry of the days of charge, which are six, to obtain the execution recorded, by the Sheriff-clerk of the county within which the charge was given, in the register of hornings for such county; and, by sect. 34, on the execution being so recorded, to issue warrant of imprisonment against the debtor. The procedure, as detailed in the Act, is generally in form and effect as nearly as possible the same as that authorized by the Personal Diligence Act, in the case of similar procedure at the instance of private parties against their debtors. But by sect. 42 of the Exchequer Act, it is declared that nothing contained in said Act shall affect any preference of the Crown in competition with other creditors; and that, in all questions of preference or competition, the execution of a charge by or for the Crown, and, in the case of deceased Crown debtors to whom no such charge had been given, the execution of any arrestment or poinding by or for the Crown, is declared equivalent to the teste of a writ of extent, according to the then existing law and practice.

PERSONAL

POINDING.

CHAPTER III.

WE have now to consider personal poinding, being the diligence whereby the debtor's moveables are appraised and sold, and the price made over to the creditor; or, if not sold, the moveables themselves are valued over to him, to the extent or to account of his debt. What we are now to examine is to be distinguished from real poinding, or poinding of the ground as it is called, and which, though attaching moveable effects only, cannot proceed without a heritable or real security affecting the ground or subjects upon which the poinded effects are situated; and which therefore belongs to the department of real diligence.

The privilege of a creditor to attach his debtor's moveables, in satisfaction of the debt, appears to have been the earliest mode of compulsory payment recognised in the law of Scotland. It was originally exercised under brieves from the Royal Chancery addressed to the Judge Ordinary of the bounds. Subsequently, the Judges Ordinary appear to have adopted the practice of enforcing their own decrees, by means of warrants of poinding directed to their own officers. The Court of Session, on its establishment, assumed the same right; and, on its decrees, letters of poinding were issued under the Royal Signet, addressed at first to the Sheriffs of counties, and thereafter to messengers-at-arms, as

Sheriffs in that part. Poinding might therefore proceed on the decrees, either of Inferior Courts, in which case it was limited in its execution to the bounds of their jurisdictions; or on those of the Supreme Court, in virtue of which it might be executed in any part of Scotland. And by the Act 1661, cap. 29, the Court of Session was authorized to issue letters of poinding, on production of the decree of the Inferior Judge; and thereby to give the means of attaching the moveables of the debtor, wherever found within Scotland, for payment of the debt.1

The warrant, annexed to a decree in virtue of the Personal Diligence Warrant to Act, contains in one the authority to charge the debtor and to poind his POIND. moveables.2 So also do the warrants contained in the extracts of decrees pronounced under the Exchequer Court Act of 1856, and in the extracts of decrees proceeding upon bonds or obligations to the Crown, on which execution may competently proceed, registered in the Books of Session, or of any Sheriff Court. These extracts are to be, as nearly as may be, in ordinary form, so far as consistent with the provisions of said. Act; except that in extracts of decrees on bonds or obligations to the Crown, and extracts of decrees for payment of debts due to the Crown, the warrant to charge and execute diligence is addressed to Sheriffs (as already stated), in terms of schedule G annexed to said Act, though capable of being executed by any messenger-at-arms or sheriff-officer.3 Poinding, however, can proceed only after expiry of the days of charge, with this exception, that in the case of deceased debtors to the Crown by bond, or other obligation, on which diligence may competently proceed, or under any decree for payment of a debt due to Her Majesty, it is lawful to register the bond, or other obligation, after, equally as before, the deceased's death; and in virtue of the extract, and on affidavit being made by any person that the debtor is deceased, it is further lawful, without the form of any previous charge, to poind the moveable effects of the deceased, in the like manner, and to the same effect, as if the deceased were still in life, and had been duly charged, and the charge had expired.5

The proceeding in poinding at the instance of private parties is now regulated by the Personal Diligence Act, sects. 23 to 32 inclusive; and at the instance of the Crown, by said Act and by the Exchequer Act, sect. 32; but I do not consider it necessary to examine the forms. In poindings at the instance of the Crown, it is lawful for the Sheriff to attach the debtor's whole moveable effects without exception, including 'bank-notes, money, bonds, bills, crop, stocking, and implements of hus- SUBJECTS OF bandry of all kinds.' When the proceedings are at the instance of private parties, it has been questioned, but not decided, whether banknotes can be poinded. Growing corn can be poinded; but wheat

POINDING.

SHIPS.

ARRESTMENT.

merely brairded, and clover grass, cannot.1 During the season of labouring the ground, plough-goods, or implements of husbandry, oxen, horses, and other goods pertaining to the plough, cannot be poinded, if the debtor has other goods that can be poinded.2 Goods which one has sold, but has not delivered to the purchaser, can be poinded or arrested by the seller, in his own hands, for a debt due to him by the purchaser, at any time before a re-sale of these goods has been intimated.3

Poinding is expressly allowed for the attachment of ships, and their tackle, etc., in the special class of cases relative to seamen's unpaid wages, etc., which is specified under sect. 523 of the Merchant Shipping Act.* In other cases, poinding is not the appropriate diligence for attaching ships; arrestment is the diligence to be resorted to. Neither is poinding competent to attach goods of which the debtor is only one of two or more joint proprietors ;5 or goods in which he has only a qualified or a temporary interest, for example, a liferent. The diligence is excluded also as to effects within the Palace of Holyrood, which cannot be entered to execute diligence; not, however, because of the privilege of sanctuary, but because it is a royal residence.7

6

Arrestment is the diligence by which the debtor in a moveable debt or obligation is interpelled from making a payment or delivery to his creditor, until the debt due to the arrester by that creditor is paid or satisfied. The party using the arrestment is called the arrester; the party in whose hands the sum or fund is arrested, the arrestee; and the party to whom that sum or fund belongs, the common debtor; because he is debtor to the arrester, and (as generally happens) to other parties competing for the arrested sum or fund. Arrestment is also, in general, the proper diligence for attaching ships or shares of ships. A limited exception from that rule was made by special Statute in 1854, as has been explained.

The diligence of poinding is available as to goods and effects in the debtor's own hands, and corporeal moveables in the hands of third parties; and either arrestment or poinding is competent at the instance of the seller of goods, for a debt due to him by the purchaser, as above explained. Arrestment used by the seller in his own hands, in security of a general balance due by the purchaser, was found preferable to the right of a sub-purchaser of goods remaining in the seller's hands undelivered, such right not having been intimated to the seller until after the first purchaser's bankruptcy,

and after the arrestment had been laid on. Poinding, moreover, is a diligence in execution only, which cannot proceed without a previous decree, either in a regular suit, or of registration. Poinding, therefore, cannot be made operative as a security to preserve the debtor's moveables for the creditor during the discussion of his claim. And there are certain kinds of property which private parties cannot attach by poinding, though the Crown can,-such as obligations to pay money to the debtor. In such cases, the private creditor has his remedy by arrestment, the execution of which, as long as it remains in force, debars the arrestee from paying or delivering the sum or fund in his hands to the common debtor.

EXECUTION.

When the claim of the arrester is duly constituted by bond, bill, or ARRESTMENT IN other probative writing, or by decree, the arrestment used is a diligence in execution, having for its object to stop or detain the fund in the arrestee's hands, with a view to its immediate payment or transference by a process of furthcoming, or otherwise, to the arrester in satisfaction of his debt.

SECURITY.

But it may happen that the arrester's claim consists of the balance Arrestment in of an account, or other demand, which is not liquid, and which requires to be constituted. In such cases, arrestment is competent equally as when the claim is liquid; but, until the claim is constituted, the arrest ment operates as a diligence in security only, and for the purpose of stopping or detaining the fund, so as to be available to the arrester in case, and after, his debt shall be constituted. There is another case of arrestment in security (and more strictly so), where a creditor has a liquid ground of debt, but the term of payment has not come, and the debtor is vergens ad inopiam; upon such a document he can use arrestments to the effect of detaining the fund, until caution is found in the Books of Council and Session that the same shall be furthcoming when the term of payment of the debt arrives. The general rule is that arrestment, to secure a debt payable at a future time, is competent only when the debtor is vergens ad inopiam.2 The question whether arrestment, followed by decree of furthcoming, at the instance of an annuitant, could be made available in competition with other arresting creditors, for security of the future payments of a life annuity, that is, for a future and contingent debt, was discussed, but not decided in the case of Macdonald. The Court were equally divided on the question whether the diligence was competent, and no decision was pronounced, the case having been compromised.

JURISDICTION.

We have, lastly, arrestment jurisdictionis fundandæ causâ, that is, for ARRESTMENT the purpose of founding or constituting a jurisdiction on the part of the TO FOUND Court of Session against a foreigner, with reference to whom the Court would have no jurisdiction in respect of his domicile. It is part of the law of Scotland, that, when a party has property within the jurisdiction 1 Wyper, 27th February 1861, 23 D. 606.

2 Pitmedden, 17th July 1678, M. 813.

3 Macdonald, 15th Jan. 1811, F. C.