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Oliver, in virtue of letters of horning, obtained on a decree of the Sheriff of Roxburgh, against W. and A. Scott, executed a poinding of certain effects belonging to one of these parties; and the execution of poinding being reported to the bailies of Hawick, they granted a warrant of sale. The Scotts brought a suspension of this warrant, particularly on the ground that the bailies of Hawick, which is a mere burgh of barony, are not judges ordinary, in terms of the bankrupt act, to whom it was competent to receive the report of the poinding and grant warrant of sale.
The Lord Ordinary found the letters orderly proceeded; and the suspenders having reclaimed, the Court ordered minutes of debate as to the regularity of the proceedings before the magistrates of Hawick.
The suspenders deny that the magistrates of this burgh have been in use to exercise the jurisdiction in question; but even if they had, such usage could not relevantly be pleaded in opposition to the enactment of a public statute.
All poindings were, by the act of sederunt 1754, to be reported to the Sheriff. The bankrupt act so far altered this provision, as to make the reporting of the poinding competent to ‘other judges ordinary.’ But a just construction of the statute will limit the jurisdiction thus extended to these ‘other judges,’ to cases of poinding that may issue on their own warrant, while the Sheriff is competent to all poindings, and exclusively competent where the diligence proceeds upon the warrant of the Supreme Court, or upon signet letters.
Upon resuming consideration of the case, the Lord Justice-Clerk observed—Attending to the decisions referred to by the respondent, I am bound to hold that this burgh was independent of the superior. Here the magistrates are in use to grant authority to poind; and it would be most extraordinary if they were not to be held judges ordinary, in the sense of the bankrupt act, with respect to the ulterior proceedings necessary to carry that warrant into effect.
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