Wilson v Alexander
| Jurisdiction | Scotland |
| Judgment Date | 23 July 1846 |
| Year | 1846 |
| Docket Number | No. 2 |
| Date | 23 July 1846 |
| Court | Court of Session (Inner House - First Division) |
Jury Cause. Ld. President.
Reparation—Wrongous Poinding.—
Bankruptcy—Imprisonment.—
THIS was an action of reduction, improbation, repetition, and damages, raised by Archibald Wilson, farmer at Kirkfield Bank, Lanark, against James Alexander, Glasgow, and Paul and Annan, writers, Lanark.
The pursuer, along with his brother John Wilson, and his two sisters, were creditors of their other brother James Wilson, against whom they had obtained decree before the Court of Session for payment of £79, 11s., including expenses. Diligence was raised upon this decree; a charge was given to James Wilson; and a poinding of his effects was executed on 1st October 1838. The poinding was reported to the Sheriff; warrant of sale was granted by him, and the sale of the poinded effects took place on the 18th October 1838. The proceeds of the sale amounted to £74, 12s., of which (after deducting therefrom the expenses of poinding and sale) there remained a free balance amounting to £63, 1s. Two days after the sale, the messenger paid over this latter sum to the pursuer, and his brother and sisters; and did not (according to the usual practice) lodge the same in the hands of the clerk of Court. The sale was thereafter reported to the Sheriff, who allowed all parties concerned to see the report.
The defender, James Alexander, was also a creditor of James Wilson, in two bills accepted by the latter, for £45: 6: 4 and £52: 6: 5. On the first of these, he raised horning against James Wilson, who was charged thereon and denounced rebel; and on 6th November 1838, letters of caption were raised. The agent of the defender, Alexander, sent these letters to a messenger, ‘that you may apprehend and book him.’ The messenger accordingly apprehended Wilson, and incarcerated him in the jail of Lanark. The object of this proceeding was to render James Wilson bankrupt, and so entitle Alexander to claim a share of his effects under the Bankrupt Statute, within sixty days of the bankruptcy.
With this view, an action was raised before the Sheriff-court of Lanarkshire at Lanark, at the instance of the defender, Alexander, libelling on the statute 1696, c. 5, and the Bankrupt Act, 54 Geo. III. cap. 137, sect. 5; and concluding that the pursuer, Archibald Wilson, and his brother and sisters, as poinding creditors of James Wilson, should ‘hold just count and reckoning with the pursuer, for the sums recovered by them in consequence of the said poinding, and to make payment to him of a proportionate share of the foresaid price effeiring to the debts due to the pursuer, after deducting the expense of the said poinding.’ In this process, the Sheriff pronounced a decree which was objected to as being ultra petita. It ordained the defenders ‘as poinding creditors foresaid, to consign in the hands of the clerk of Court a fourth part each of the...
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