Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Job
v.
Ker

Date: 26 November 1624

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In an action of spuilyie, pursued by Job against Ker, an exception of poinding being proponed to elide the spuilyie for a term's duty addebted to the excipient by the pursuer, which he was obliged to take to pay to him; and it being replied that the poinding for that term could not elide the spuilyie, seeing the defender placed in other tenants in the land that year, for the which the poinding is used, which tenants so placed, and in-put by himself, laboured the ground that year, and the pursuer left the same, and removed therefrom before, so that he could not be debtor in that year's duty;—this reply was only found relevant to be proven by writ, or oath of party, seeing it tended to prove payment of a duty contained in a written tack, and so to make the tack and poinding thereupon ineffectual;—and would not admit the same to be proven per testes omni exceptione majores, as the pursuer offered.

Hay, Clerk.

Vid. 25th November 1624, Bisset against Bisset; and 26th February 1631, L. Garthland; where none may poind their own ground.

Page 154.