hand. The strictest caution is incumbent on all parties. "On the one hand," says Mr Tait, 66 a justice who proceeds malâ fide, or irregularly, in granting such a warrant, may be subjected in damages to the debtor, the creditor being also liable in such a case; and being also liable in circumstances which may not subject the judge, e. g. where he swears falsely to a debt, or to such facts as may constrain a judge, with no opportunity of seeing them refuted, to issue a warrant; but where a justice judges fairly, and to the best of his powers judicially applied to the circumstances proved before him, he will not be liable in damages any more than in ordinary cases where he is called on to judge of evidence. On the other hand, if a judge obstinately refuse a warrant where the meditatio fugæ is sworn to, and is justified by manifest proof of an intention to escape, and if the debtor escape, the justice may be subjected in damages." The debtor is liberated on his finding caution to abide the result of any action founded on the debt which may be raised within six months (see above, p. 229); and if he do not find caution he must be liberated at the end of six months if no such action be raised.3

It has been found that a meditatio fuga warrant cannot be granted for a debt not exceeding £8, 6s. 8d. p. 458.

See above,

CHAPTER VI.

PROCEEDINGS FOR ATTACHING MOVEABLES.

SECT. 1.-Personal Poinding.

THE preliminaries of personal poinding are described above as introductory to the issuing of a writ of imprisonment. Poinding is the seizure and sale of the moveable goods of the debtor at the expiration of the days of charge as above. It may be executed by the officer in virtue of the extract, or on warrant in favour of a person acquiring title, or on warrant of concurrence, as above described. (See p. 456). It may include not only the original debt, but the expenses of the poinding. The officer proceeds to the spot, and, accompanied by two sworn valuators, who act also as witnesses,

1 Tait's J. P. 315.-2 Ibid. 311.-3 Ibid. 316, 317.-- 1 & 2 Vict. c. 14, § 4.5 M'Neill v. M'Murchy, 13th February 1841.

declares the property to be attached for behoof of the creditor, and leaves it with those in possession, to whom he gives a schedule, specifying the effects, their value, and the person at whose instance they are poinded. The officer, if required to do so before the poinding is completed, must conjoin in it any other creditor who produces a warrant.1 He must report the poinding to the sheriff, specifying the authority under which he acts; the names and designations of the debtor and creditor, of the valuators, and of the person in whose hands the goods remain; the delivery of the schedule; and the value of the goods. This must be done within eight days, unless it be shown that it could not be accomplished within that period. On receiving the report, the sheriff, if necessary, gives orders for the security of the goods, and if they be perishable, for their immediate conversion into money. In the ordinary case, he will grant warrant (if required) for their sale by auction, at the sight of a judge appointed by him, and at such time and place, and with such advertisement as may seem expedient. The sale must not take place before eight or after twenty days from the date of the advertisement. Either the day of publication or the day of sale may be included in the eight, and so of a sale on the 18th of the month, sufficient publication was found to have been given on the 10th. A warrant of sale not fixing the day is illegal. The sheriff orders a copy of the warrant to be served on the debtor, and on the person in possession of the goods-if he be a different person from the debtor, six days before the day of sale, unless in the case of perishable effects.6

The articles are to be sold at upset prices not less than the appraised values, and if there be no bidding, they are to be handed over to the poinder to the extent of his debt, interest, and expenses, according to the appraised value, subject to the legal claims of other creditors. Within eight days the judge reports the sale or delivery to the Sheriff; in the former case lodging with the sheriff-clerk the roup-rolls or certified copies, and an account of the proceeds, which the sheriff directs to be paid to the poinder to the extent of his debt, &c., as above. These documents must be patent to all concerned on payment of the fee of one shilling. The poinder or any other creditor may bid. Any person intro

Maclaurin's Form of Process, 334. 1 & 2 Vict. c. 114, §§ 23, 24, 25, 32.-1 & 2 Vict. c. 114, § 25.-3 Ibid. M'Neill v. M'Murchy, 13th February 1841. Kewley v. Andrew, 18th March 1843.- 1 & 2 Vict c. 114, 26.-7 Ibid. § 27.-8 Ibid. § 28.-9 Ibid. § 29.

mitting with or carrying off the poinded effects is liable, on summary complaint to the Sheriff, to be imprisoned till he restore them, or pay double the value.1

SECT. 2.-Poinding of the Ground.

Poinding of the ground is a process by which the superior was in use to exact payment of his feu-duties. It has long been available to the holder of any real security, such as an heritable bond, for attaching the moveable goods of the proprietor, and of his tenants to the extent of any rent which may be due by them. "This action is competent to an annualrenter for the arrears of interest due upon his infeftment, to a superior for his feu-duties, or for the retoured duties due to him before citation of his vassal's heir in an action of declarator;* and, in general, to all creditors in debts which constitute a real burden or lien upon lands. But it is not competent to proprietors, nor even to possessors, though not strictly proprietors, as adjudgers, liferenters, or other real creditors, who possess under their different titles; for there is a natural impropriety in poinding the ground of lands possessed by the poinder himself."2

The proceedings may be conducted either before the Court of Session or the Sheriff. The proprietor of the lands and his tenants are the parties called. When a decree is obtained, letters of poinding are issued, which authorize a messenger to poind and distrain the moveables, which are afterwards sold by warrant of the Sheriff. As there is no personal conclusion in the summons against any party, no personal charge is necessary.3

SECT. 3.-Landlord's Sequestration for Rent.

The process by which the landlord converts the goods over which he has an hypothee into a real pledge, and gets them sold for the rent, is termed Sequestration. After the term of payment the landlord can sequestrate for sale. Before the term of payment he can, on good cause shown, sequestrate for security. The process commences by a petition to the Sheriff, or the magistrates of the burgh, praying for a warrant "to inventory and sequestrate the whole corns, cattle, household furniture, and other effects, and to roup as much as will pay the rents and expenses of sequestration and roup, and

11&2 Vict. c. 114, § 30.-* See above, p. 53.—2 E. iv. 1, 11.—3 Ibid. 12, 13. R. L. i. 385, et seq.

the residue to remain under sequestration until farther orders." The judge having granted the warrant, the proper officer executes it, taking a specific inventory of the subjects. This inventory is the only legal evidence of what has been sequestrated. A legal attachment of the effects is thus created, and the tenant intromitting with them is liable to imprisonment for breach of sequestration; but he remains administrator, and is entitled even to consume sequestrated produce for the ordinary support of the farm-establishment, -to feed the servants and cattle. The petition, in as far as it contains a warrant to sell, will be intimated to the tenant; and a reasonable period is allowed him, after which, if he do not appear, or, appearing, do not state a sufficient defence, a warrant is granted, vesting the landlord, or a third party, with power to sell, which is carried into execution under the eye of the clerk of court. In accounting for the returns the landlord is entitled to deduct expenses.4

In sequestrations under the small debt act, there are special regulations for the sale of the effects, and the notice to be given to the tenant.5

SECT. 4.-Crown's Extent.

Extent is a diligence, introduced from the law of England, to enable the crown to seize the property of its debtor preferably to all other creditors. In England it is applicable to the real or heritable estate, in Scotland only to the moveable. It is generally employed for the recovery of the arrears due by the collectors of the revenue. It proceeds on a Fiat issued by the Judges in Exchequer, directing the Sheriff to inquire as to all the moveables, debts, and sums of money belonging to the debtor, and to seize the moveables and money, so that he may sell the goods to the extent of the debt, and return the proceeds to Exchequer;-to enable him to accomplish this, a second writ is issued, called " venditioni exponas." This department of the process is called an “extent in chief of the first degree." Where the Sheriff's inquisition discovers debts due to the king's debtor, an "extent in chief in the second degree" is granted-on an affidavit of the insolvency of the debtor-against his debtor. The procedure is similar to the extent of the first degree, and, where necessary, extents may proceed in the third and fourth degree.7

1 H. on L. & T. ii. 405.-2 Ibid.- Ibid. 411. Ibid. 413. A. S. 11th July 1839. *See above, p. 449.-57 Wm. IV. and 1 Vict. c. 41, § 20.66 Anne c. 26, § 8. Tidd's Practice of K. B. & C. P. 1043.-7 Tidd's Practice of K. B. & C. P. 1044-1048. B. C. ii. 41, et seq.

The application for extent must be accompanied by an affidavit called an "affidavit of danger," setting forth the debt and the danger of loss. Where there is a bond the extent is granted on its simple production with the affidavit. Where there is no bond, a commission is issued for commissioners to take inquisition by the oaths " of good and lawful men," and on the testimony of witnesses. The distinction is derived from the practice of the law of England, in the phraseology of which the debt must be "matter of record."1 The writ is tested in the name of the Judge in Exchequer, signed by the Queen's Remembrancer, and sealed with the Exchequer seal. The security is real on the goods from the date of this operation, which is termed the "teste.”2

An Extent in Aid is a process by which the king's debtor may obtain a preference over the property of a person indebted to him. It may be obtained by one against whom an extent in chief may be issued, or by one who is pursued as surety for a collector of the revenue. There are various provisions for preventing this process from being abused. If the sum due to the debtor of the crown exceed what that debtor is himself due, the extent is restricted to the amount, and the proceeds,are paid over for the service of the crown.3 It is competent in the general case only to collectors of duties, to bankers or others receiving taxes in deposit, to farmers of duties, and to individuals who have to account for duties at stated intervals. One may always obtain an extent in aid to recover a debt which he is himself bound to pay over to the crown.4

SECT. 5.-Arrestment; its Nature and Application.

Arrestment may be described as a process by which a person, who has in his possession moveables belonging to another, or is owing him money, is prohibited from parting with the goods, or paying the debt, until a debt due or alleged to be due by the person to whom he owes the money, or whose property he holds, to the person who uses the diligence, is paid or secured. The subject arrested must be virtually out of possession of the arrester's debtor, and in the possession of another person, and so no arrestment can take place in the hands of a servant, clerk, or steward as to the property of his employer, or in the hands of a hirer of a

1_Tidd's Practice of K. B. & C. P. 1044, 1050.- Ibid. 1047, 1053.— 3 57 Geo. III. c. 117, § 1.-4 Ibid. § 4. B. C. ii. 48-50.-5 Cuningham v. Home, 18th November 1760, M. 747.