A third party compearing at a poinding, and offering to make faith that the goods were his; the Lords found, that the rejecting of this offer inferred a spuilzie, unless the poinder would offer to prove, that the goods belonged to the debtor.
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The Laird of Wedderburn called Mr George Hay of ——— for spuilzie of certain goods. Hay alleged he did nae spuilzie, because these goods were apprised by an pursuivant, by the Court's letters passed upon a decreet of the Lords of Council against the Laird Blackader for apprising the said Laird Blackader's goods; and these goods were got by the officer coming furth of the town of Blackader, and prized as his goods, and delivered and assigned to him in payment by the said officer. It was replied, That the time of the apprising, and immediately before the same, the Laird of Wedderburn's servants came to the officer, and offered to make faith and proof by witnesses, that these goods were the said Laird's goods, and that in presence of the said Mr George Hay's servants and household men, being presently with the said officer, sent with him by the said Mr George, and that the goods came not to his profit, and so wrongously taken by the said officer and his servants in his name, and of his knowledge and command, to his use and profit. The said spuilzie should be judged of his command and participation; for he could not pretend ignorance of it done by his servants, in his name and command, to his use. The Lords repelled the exception, admitting the summons and reply to probation, and so in poinding; the officer ought not to poind but the man's goods that the letters specify; and he ought to admit any man to make faith, and to prove the goods his, and to stop the poinding: And howbeit the officer indorsed the goods poinded by him the man's own goods, yet the Lords will admit another man to prove these goods his, and not the man's whose goods the letters bids poind, because the officer may fail in the executing of his office and duty; but and the officer or the party that got the goods poinded would accept these goods the party's own proper goods, then the probation of the property of the goods would be given to the officer and he for whom they were poinded, because it is to prescrive for the officer, and that he does not to the other party, that alleges these goods to have been his, and not the man's whose they were poinded; and this is the practick of Scotland. And anent the said reply in the said action of spuilzie of Wedderburn against Hay, certata fuit latere præcedenti, that the said Mr George could not be excused frae the spuilzie, because the officer was sent by him, and his own household servants with him, and his gear brought to him, and come to his use and profit, and that therefore it is not presumed but that the knowledge of the gear poinded, and how the Laird of Wedderburn his servants offord to swear and prove the gear their master's, and not the Laird of Blackader's, came to his ears. (See Appendix.)
