A decree upon which goods had been poinded and rouped, was reduced. The buyers though bona fide purchasers, were found obliged either to restore the goods, or the price thereof, because the decree being reduced, all that followed on it behoved to fall of consequence.
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James Beveridge of the Hilton pursued for reduction of a decree given before the Sheriff of Fife, by virtue of which there were certain goods, oxen, cows, and sheep, pertaining to the said pursuer, poinded, and thereafter apprised and sold, and disponed to certain persons, indwellers in Cupar of Fife; which persons were pursued by him, together with his son, and the officer, for the spoliation of the said goods from him, they being then in his possession as his own proper goods; at the time of the advising of the process, there was no other thing found to be proven, but the officers coming to the ground, and his taking away the said goods, and thereafter the lawful apprising of the same; so the question fell forth inter Dominos, if that the persons who coft the goods, after that they were lawfully apprised, should be debtful of the same or not. For the 1st, it was reasoned inter Dominos, That, because the said persons had coft the said goods bona fide et auctoritate judicis, they could not in any sort be debtful, either in squilzie or otherwise, ‘pro hac re facit L. I. Cod. Si, in causa judicati pignus captum sit. Verba legis sunt; “Nam in vicem justae obligationis succedit ex causa contractus auctoritas jubentis;” et in L. 3. ibidem, “In causa judicati pignora ex auctoritate Praesidis capta potius distrahi quam jure dominii possideri consueverunt.” By the meaning of these laws, it appears to be plain, that the persons who coft the goods, after they were lawfully apprised, and then rouped at the market cross by the officer of arms, did nothing but lawfully therein; and so the persons, buyers off the same from the officer, after the apprising and rouping of the same, did lawfully thereintill, for otherwise, if such inconveniencies were ay to fall forth in the buying of the apprised goods, that no person should buy or take the same off the hand of the officer, fearing ay danger and inconvenience to come upon the same, which should be to the great hinderance and stay of the execution of justice. To this was answered, That the decreet reductor behoved to take effect, which contained into it both spoliation and restitution of the goods which were taken away, and that the interposition of authority of the judge in this case might be held,” non factum judicis sed partis, ut in L. 13. Cod. De evictionibus, et ibid Bald et in L. 1. § 5. D. Ne vis fiat ei qui in possessionem missus erit, et ibidem Bart et communiter doctores;’ and also, it was lately practised betwixt the Laird of Ruthven Vans and Coutts of Auchtertoul, (see Appendix), that the said Auchtertoul, albeit he had poinded goods and gear by virtue of a decree, was decerned to have committed spuilzie.—The Lords, after long reasoning among themselves, pronounced definitive, and decerned the buyers of the said goods from the officer, to restore and deliver the said goods, or else to pay the prices of the same, as they were apprised and rouped, to the pursuer, et hoc omnes Domini una voce dicebant, quod rarum est.
