Scottish Court of Session Decisions

The other appraiser is examined for the defenders, and his account of the proceedings is not substantially different. He is asked—“Were there more than six portfolios in the place?—(A) I could not say. (Q) Did you see six?—(A) I did not count them. (Q) You surely counted six, did you not?—(A) No; Richardson said there were six. (Q) You saw the portfolios that were there, did you not?—(A) Yes, but I did not count them. Before we began to value the things Richardson told us to put a fair valuation on the articles to the best of our knowledge. (Q) Did you agree to do so?—(A) Yes, we said we would do it. (Q) Was what was said and done that day in accordance with your usual practice in the execution of poindings in Small-Debt decrees?—(A) Yes. Cowan wrote a copy on the back of the Small-Debt decree the same as mine. (Q) When Richardson pointed out the things to you, and you entered them in your schedule, did you put a value upon them?—(A) Yes. (Q) You and Cowan did?—(A) Yes; Richardson put no value upon them. (Q) Did he ever say, when you were doing your work upon any occasion, that you were ever putting too low or too high a value upon the things?—(A) No; I am not a judge of the value of engravings; but I did my best in putting a value on Le Conte's pictures and engravings. By the Court—(Q) Did you see a great number of engravings?—(A) I saw some portfolios, but they were tied up, I think. I did not see the engravings that were inside the portfolios. (Q) How could you do your best to put a value upon them if you never looked upon them?—(A) The £3, 11s. 7d. was to make up the amount of the debt, and what was required when we came to the last lot was to bring the value up to the amount of the debt.”

Now, the question comes to be, whether this mode of executing the diligence of poinding is legal or not? and I entertain no sort of doubt that it is eminently illegal, and for this reason, that the goods were never appraised. It is essential to the validity of a poinding that the goods appraised should be reported on by the officer executing the diligence, and thereafter they are exposed in terms of the report and put up to auction at the appraised value. This shows the appraisement to be an essential part of the process. But to take an unknown quantity of goods and put a value upon them simply to make up the sum of the debt and expenses is not an appraisement. It is quite true that a critical valuation is not to be expected, but the appraisers are bound to use their best skill and care to come to a proper idea of the value of the articles. Here, however, all idea of an appraisement seems to have been abandoned, and from other parts of the evidence we see the officer simply made a clean sweep of the debtor's premises. It seems to me unnecessary to go further in order to concur with the Lord Ordinary that the proceedings complained of were illegal and oppressive. But it is contended on the part of the creditor in the decree that he is not answerable for the mode of execution, having employed a proper and responsible officer. Whatever may be the merits of that question, however, when it occurs purely, I am clearly of opinion that the creditor cannot take benefit from such a plea in the present case, for he adopted the actings of the officer in the knowledge that they were illegal. He was duly warned, but took the goods adjudged to him by the officer and sent them to an auction-room to be sold. This necessarily conducts me to the conclusion that the pursuer here is entitled to prevail, and that it is unnecessary in the present case to decide the question whether the appraisers in such a proceeding must be formally put on oath or not.

Lord Deas—A question of this kind occurred in the case of Mackinnon v. Hamilton, June 21, 1866, 4 Macph. 852, where a poinding was executed for a debt of £13, the value of the effects poinded being £72, 19s. The Lord Ordinary said—“The poinding of effects of an appraised value upwards of five times the amount of the debt sought to be recovered is in the opinion of the Lord Ordinary of itself a very questionable proceeding.” It was observed by myself—“The poiuding was perfectly unjustifiable, for it appears to have involved a total displenishing in order to pay a debt of £13. If we were to sanction such a proceeding we should be making the diligence of poinding the means of gross injustice and oppression.” Lord Curriehill said—“I am of the same opinion. If this poinding were sustained on the ground now pleaded, it might as well be maintained that if a debtor's estate were burdened with an heritable debt for which a poinding of the ground might be executed by the heritable creditor, which would be preferable to the diligence of personal creditors of the owner, it would follow that any personal creditor of the owner poinding for payment of a personal debt, however trifling in amount, might poind all the moveable effects on the ground in order to guard against the possible contingency of the heritable creditor happening to use his remedy under his real security?” It was only a question of passing a note of suspension, but the opinion of the Court was quite explicit, and the poinding was abandoned. Your Lordship has stated the grounds upon which the present poinding should be held excessive, and these are clearly a fortori of that case in 1866. I do not think it necessary to go beyond this for a decision of the point. I see no ground for interfering with the discretion of the Lord Ordinary as to the amount of damages, and the case raises no general question of the liability of employer and officer, for this employer lay by and adopted all the officer's actings.

Lord Shand—It appears to me that the question here is substantially that raised in the issue which was settled by the Court in the case of Robertson v. Galbraith, July 16, 1857, 19 D. 1016. In that case the landlord was alleged to have proceeded to see effects poinded by him oppressively and illegally, and the Court allowed the issue—“Whether the defender on or about the 16th of March 1855, in selling part of the sequestrated effects under the said warrant, did illegally and oppressively sell the same in disregard of the interests of the pursuer, and in a manner to produce loss, injury, and damage to the pursuer?” The question here is, Whether the defender Douglas, having procured a warrant to poind, did, in carrying out that procedure act illegally and oppressively in disregard of the interests of the pursuer? The statute no doubt provides for a summary mode of carrying out such a poinding, and I do not mean to say that, particularly where the debt is small, and the articles poinded of trifling value, we can require a minute and detailed valuation. But it would be a serious thing if the officer were to be allowed to include every article in the house so as to inventory and have the power of selling all the debtor possesses. There must be reasonable procedure in the way of valuing the effects, for the valuation is only a step towards transferring to the creditor the property of the debtor at the amount of the valuation. The statute provides for a notice of two hours before the goods are exposed for sale by the officer, and if no one appears to offer the appraised value, the property is handed to the creditor at that value as his own. It therefore is clear that there must be a substantial, if a rough and ready, valuation of the goods poinded. But here the evidence shows that no serious attempt was made to put a fair value on the effects. I shall only add, in addition to the item already referred to by your Lordship in the chair, that in article 5 of the report of poinding we have “Twenty pictures in gilt frames, five oil paintings, at £5.” These works appear to have been of substantial value, and we find that the articles realised upwards of £36 at the sale, and were thought by the purchasers to have been bought at a bargain. As to the oath which should have been administered to the appraisers, the officer appears to have thought it a mere matter of form, but whatever was his motive in omitting it, there can be no doubt that the proceedings were illegal and oppressive, in disregard of the interests of the debtor, and to his loss, injury, and damage. And I am not disposed to interfere with the Lord Ordinary's valuation of that loss. As to the responsibility for it, which the Lord Ordinary has found conjunct and several, the employer maintained he was not liable, but I think it unnecessary to give any opinion on the general case, for in this case the creditor was duly warned of the nature of the proceedings, and must be held to have adopted them. The other defence, that the pursuer was not entitled to lie by and allow the articles to be sold, but should have brought a suspension, I am not prepared to sustain, as in my opinion he was not bound to involve himself in a dispute at that stage. The case discloses a very loose practice in regard to sales of this kind. The defence practically amounts to this, that the defenders were only doing what other people did. If that be so, all I can say is that the sooner such practices are put a stop to the better, by regulations issued by the Sheriffs, in virtue of their powers under the statute, or from the Crown office if necessary.

Lord Mure was absent.