If the party to whom goods belong, which are about to be poinded as the property of another, appear and claim them, it will be spuilzie if they are poinded; but if he do not appear at the time, it will not be spuilzie; there will only be action simply for restoration.
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Anent the action pursued by John and William Hamiltons, sons to the Lady Stenhouse, and John Anderson burgess of Edinburgh, and Andrew Sands dwelling in the Blair, against the Sheriff-depute of Perth, and the Sheriff-officer of the same, and Peter Cochrane and others, for the spoliation of certain goods from the said pursuers; it was alleged by the said Sheriff-officer and the said Peter and the rest of the defenders, That the goods alleged to be spuilzied by them were taken and apprehended by them upon the ground pertaining to the said Lady, for execution of a debt given against her at the instance of the said Peter Cochrane; and so the said Sheriff-depute-officer, and the said Peter Cochrane, and the rest of the said defenders, who were but witnesses of the said officer in execution of his office, and therefore they did no wrong nor spuilzie. It was alleged, That the goods spuilzied pertained no way to the said Lady, but allenarly to the said pursuers, resting as their own proper goods; and the allegeance of the said defenders was direct contrary to the pursuer's libel; and more attour it was alleged by the said Anderson and the said Sands, That in the time of the apprehension of the said goods by the said officer, and before the apprising thereof or delivering of them to the party, they came to the said Sheriff-depute-officer, and alleged, that a part of the said goods was their proper goods, being-in their possession the time of the taking thereof, and certain space before; and offered them to make faith and proof thereupon, according to the law and practice, desiring the same goods to be delivered to them, the which the said Sheriff-depute-officer refused to do; upon the which the said pursuers took instruments. It was alleged by the said defenders, that albeit that had been of verity, they could have asked no more but the principal goods again, or the avail thereof, and not the profits of the same, as it were not a spuilzie. It was found by the Lords, by their interlocutor, That in respect of the said Anderson and Sand's allegeance, that the saids defenders be condemned in a spuilzie, and to restore the saids goods with the profits thereof to the saids pursuers, according to a decreet of spuilzie; and as to the goods pursued by the said John and William Hamiltons, it was ordained, that the principal goods which pertained to them be delivered to them, or the avail thereof without any profit, because none compeared before the said sheriff-depute nor officer foresaid, before the apprising and delivering thereof to the party, that the goods pertained to the saids pursuers.
