in order to his liberation, to obtain letters of relaxation. But by modern practice the debtor is entitled to his freedom on payment of the debt, or upon consigning the amount in the hands of a magistrate.1(r) 428. What circumstances bring into effect the Act of Grace; and what is its effect? When a prisoner for a civil debt or cause is unable to maintain himself, he is entitled, under the Act of Grace, to apply to the magistrates for an order upon the creditor to give him aliment, and if the latter refuse or delay for the space of ten days after intimation of the application to provide aliment, the debtor is entitled to liberation;2 after which he cannot be again apprehended on the same warrant, unless there be a change of circumstances, or unless the debtor has been liberated through error imputable to himself. [But see remarks by Lord President Inglis in Forgie, 3 Rettie, 1149, where re-incarceration allowed without a change of circumstances.] 3 429. What is the object of the bond of presentation; and what is the nature of its obligatory clauses? The object of the bond of presentation is to allow a debtor who has been apprehended at the suit of a creditor time for making an arrangement, instead of going directly to prison. It is granted by a friend of the debtor, and he binds himself that the debtor shall, at a specified time and place, appear in the same condition, without any suspension, sist or protection(s) which might prevent the execution of the creditor's diligence; and, in case of failure, the obligant binds himself to pay the debt, with interest and expenses. 430. What circumstances will excuse an obligant in a bond of presentation from presenting the debtor ? 1 Kames' Law Tracts, 373; Menzies Lect. 291 (300).(g) 2 1696, c. 32. 3 Mackenzie, 14th Jan. 1830, 8 S. 306. Pender, 28th Jan. 1846, 8 D. 408; White, 24th Nov. 1858, 21 D. 28. 5 Ross Lect. i. 353; Menzies Lect. 292 (301); Jur. St. ii. 442. (q) Forbes, 31st Jan. 1823, 2 S. 169. (r) Or by consent of the incarcerating creditor or creditors. (1) The bond is satisfied and the cautioner freed by the debtor's death. (2) Serious illness is a sufficient excuse, provided the debtor is presented when he has recovered. (3) It has been held that imprisonment on another caption will not excuse the obligant, because the impediment to presentation is imputable to the debtor himself,' but this is doubted by Professor G. J. Bell, on the ground, that "the creditor has all the benefit that he could have had by himself imprisoning the debtor, there being no preference by priority of personal execution;"" and he holds that the obligant will be released if he give notice of the place of confinement.3 (4) The obligant will not be released by the debtor's enlistment, nor by his betaking himself to the sanctuary.5 (2.) Poinding. 431. What are the warrants of poinding? (1) Letters of horning and poinding; (2) extract decrees, registered bonds, or registered protests; (3) Sheriffs' precepts; (4) Exchequer-warrants. 432. Where a year has elapsed from the date of the charge, is it necessary to give a new charge in order to obtain a warrant for the imprisonment of the debtor or to poind his effects? (1) The execution of charge, in order to obtain a warrant of imprisonment, must be registered within a year and day after the charge has expired, and therefore a new charge is necessary if registration has not been made within the year;7 (2) but poinding may proceed even at a distance of years after the charge. 8 433. Before the Personal Diligence Act, when access was not obtained for the purpose of poinding, what was necessary to be done? When access to the goods was not obtained, the messenger returned an execution to that effect, and upon the production of the 1 Polstead, M. 1807. Bell's Com. i. 402. 3 Bell's Prin. 277. 4 Henderson, M. 1809. 5 Douglas, 17th Dec. 1842, 5 D. 338. 6 Ersk. 3, 6, 20; Bell's Prin. 2286. 7 1 & 2 Vict. c. 114, § 5. 8 Kerr, 30th May, 1837, 15 S. 1041. diligence and execution in the Bill Chamber, warrant was obtained for letters of open doors, which passed the Signet, of new charging messengers to poind, and, if needful, to make shut and lockfast places open and patent.1 434. What subjects cannot be poinded? 2 (1) Ships, it is said, cannot be poinded;(t) but this is doubted by Professor G. J. Bell; (2) effects in the Palace of Holyrood House; (3) wheat merely brairded, and clover grass;* (4) plough goods-being horses, oxen, implements of husbandry, and other goods pertaining to the plough-are not poindable during the season of labour, if the debtor has other effects;(u) (5) goods of which the debtor is only joint proprietor; (6) goods in which he has only a qualified or temporary interest; (7) debts; (8) it is a matter of doubt whether bills and bank-notes are poindable; (v) under the Court of Exchequer Act it is lawful to poind for crown debts every description of the debtor's moveable effects, including bank-notes, bills, implements of husbandry, &c.1o 10 435. Can a sale be stopped by an arrestment used in the hands of the owner of the poinded effects, by the creditors of the poinding creditor, after warrant of sale is obtained? State the reason. No; because the proceeds being consigned with the clerk of court, the claims of the arresting creditors would be in no degree affected.11 1 Menzies Lect. 296 (305). Bell's Com. ii. 60. 3 Earl of Strathmore, 18th Feb. 1823, 2 S. 223, rev. 22nd Feb. 1826, 2 W. & S. 1. 4 Elder, 5th July, 1833, 11 S. 902. 5 1503, c. 98; Ersk. 3, 6, 22. 6 Fleming, 2nd Dec. 1828, 7. S. 92. 7 Scott, 13th May, 1837, 15 S. 916. 8 Bell's Prin. 2288. 9 Bell's Prin. ib. 10 19 & 20 Vict. c. 56, § 32. 11 Anstruther, 22nd Feb. 1851, 13 D. 778. (t) The usual mode of attaching ships is by arrestment and process of sale. (u) The Act prohibits the poinding of those goods "quhair ony other gudes or landes are to be apprised or poynded." See Wemyss, M. 10520. (v) This question was raised in Hamilton, 12th June, 1741, Br. Sup. 5, 708; and in Alexander, 14th Feb. 1826, 4 S. 439, the report of which case bears-" Although the question of the competency of poinding bank-notes was fully argued by the parties, yet their Lordships did not deliver any opinion on that point, nor did they intend to decide it." 436. What is the procedure in executing poindings? (1) The messenger goes along with two valuators to the debtor's dwelling-house, he cries three oyesses, reads the warrant, makes a schedule of the goods poinded, and of the value as fixed by the valuators on oath, and administered by him, offers three times the goods back to the debtor at the appraised value, and, on the debtor's refusal, adjudges, discerns, and declares the poinding to be completed, and the goods to belong to the creditor; the goods being left in the hands of the debtor, with a signed note of the value. (2) The messenger, within eight days, reports the poinding to the Sheriff, who then grants warrant for a sale, betwixt eight and twenty days after publication of the notice of sale, six days' notice of the sale being given to the debtor, or other possessor. The goods cannot be sold for less than the appraised value, at which they are delivered to the creditor, if the appraised value be not offered at the sale. The sale, or delivery, is reported to the Sheriff within eight days; and if a sale has taken place, the roup roll, and accounts of the proceeds, must at same time be lodged. The Sheriff then orders the proceeds to be consigned with the clerk, and the amount paid to the creditor to the extent of his debt, interest, and expenses.1 437. If the debtor were to allege that the goods are not his property; or, a third party appeared and claimed the goods; or, a third party, in circumstances indicating collusion, produced a written conveyance to them in his favour; Ought the messenger, in any of these cases, to stop the poinding? (1.) Where the debtor alleges that the goods are not his property, that will not stop the poinding. (2.) Where the goods are claimed by a third party, the messenger may take his oath, and interrogate him in order to discover to whom the property belongs; and if it shall appear that the claim is collusive, he may proceed with the poinding. (3.) Where a third party produces a written conveyance, and supports it with his oath, although there are indications of collu 1 Ersk. 3, 6, 24; Menzies Lect. 298 (307); 1 & 2 Vict. c. 114. P sion, the messenger must stop the poinding; because he cannot judge of the effect of the deed.'(x) 438. Must the poinded effects, in all cases, be left where poinded? State the reason. The Personal Diligence Act provides that the poinded effects are to be left with the person in whose possession they were when poinded; but in poindings of Crown debtor's effects, it is by the Court of Exchequer Act declared to be lawful for the officer, where it is deemed expedient, to take possession of the poinded effects, and to put them in a place of security, instead of leaving them with the person in whose possession they were poinded.3, 439. Does the appraisement require to be stamped? Not unless licensed appraisers are employed, which is not necessary.*(y) 440. The sale was advertised on the 10th, and appointed for the 18th of November; Is that a sufficient compliance with the requirements of the Act? 1 Ersk. 3, 6, 26; Breadalbane, M. 10522. 2 1 & 2 Vict. c. 114, § 24. 3 19 & 20 Vict. c. 56, § 36. 4 Drummond, 25th Nov. 1824, 3 S. 311. (x) The case of Breadalbane, cited, was an action of spuilzie, on the allegation that the messenger had refused to accept the party's oath, having required him also to depone whether the disposition "was for onerous causes or simulate," which the party refused to do, and which the Lords found to be a spuilzie. The reporter adds—“But it were fit that the Lords, for clearing the lieges, would determine the point how far a messenger's power may reach in trying the simulation of all such dispositions produced before them, else all poindings on the production thereof may be stopped." (y) This point was not decided in the case cited (Drummond). There was no separate appraisement, but there were two executions, the first of which was objected to as not being signed by the appraisers, and the second as being unstamped. It was held that the execution did not require a stamp. In the course of the processes the opinion of the Solicitor of Stamps was taken, and he stated "that he did not consider that the instrument of execution of poinding itself required a stamp, but that appraisements incidental to or occurring in the legal diligence of poinding did so." The question would probably turn on there being a separate appraisement rather than on the persons employed to make it. |