JAMES MAIN v WALTER WILSON (Court of Session)

The charger stated, that he was personally ignorant of any such proceedings; and although it was stated, in a petition at the instance of the landlord for sequestration of certain effects belonging to the suspender, that a poinding had been executed, yet it did not appear that the debt had been thereby paid. On the contrary, it was obvious that the debt had not been discharged, as the bill, after its alleged payment, remained in the hands of Black, and there was no trace in the Sheriff-court books of Lanarkshire of the alleged poinding.

st , The bill had been paid by the poinding and sale in 1813. 2 d , That this was the presumption of law from the long taciturnity; and that, at all events, the charge should be suspended until the charger count and reckon for the proceeds of the effects sold in 1813.

st , The bill charged on was resting owing. 2 d , The charger is entitled to the privileges of an onerous bona fide holder.

The Lord Ordinary, before answer, granted a commission and diligence to recover the steps in the poinding, but no trace of them could be found. Thereafter, on the 25th of January 1839, his Lordship suspended the letters, ‘but without prejudice to the charger constituting and obtaining decree for payment of the sum charged for by an ordinary action: Finds the charger liable in expenses, appoints an account thereof to be given in,’ &c.

Note .—‘The Lord Ordinary still thinks the case a very suspicious one against the charger, considering him as liable to all the objections competent against his cedent. If he can make out his debt by an ordinary action, he may; but taking all the circumstances into view, there is sufficient to warrant the rejection of this summary charge on the bill as a privileged document.’