A poinding may be stayed, either by a party pretending to have right to the goods, and offering to make faith thereon, or by a landlord for his hypothec, if security is not given for his rent; but these allegeances must be-made at the time of stopping the poinding, otherwise they will not defend against the deforcement.
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In an action of deforcement, L. Halkerton contra Kadie and Grieves, tenants to the L. Benholm; The Lords sustained a bond of L. 80 of principal sum, and 40 merks of penalty, albeit only subscribed by one notary, and found it not to be a matter of importance, which required to be subscribed by two notaries, albeit the penalty, counted with the principal sum, made it to exceed L. 100; seeing they had respect only to the principal sum of the bond, and the penalty was but an accessory obligation; and because the poinding deduced against the debtor of, this bond, for the execution whereof this deforcement was pursued, was begun to be executed before the rising of the sun, as the defender alleged, whereby he contended that act to be unlawful, and that therefore he might justly impede the same; albeit at the time when the impediment was made, the pursuer answered, That the sun was up and risen; at which time he replied, It was not lawful to make a deforcement, although the act of the execution and poinding was begun before the sun rising, which poinding was deduced in the month of June. This exception, nevertheless, was found relevant; for they found, That as no judge could begin and enter to sit in judgment before lawful time of day, and before the rising of the sun, no more could execution be made by officers upon sentences at such times; also they found, That deforcements could not be elided by any allegeance, proporting the goods poinded to pertain to another person than to the debtor from whom they were poinded, except that either that person's self, to whom they were alleged to pertain, or some other in their name, had compeared at the poinding, either upon the ground, or at some other time, before the act was complete and ended, and offered to make faith that the goods pertained to the other person; which being done, they might have stayed the poinding without danger of deforcement, otherwise not; for the offering to prove against the pursuit of deforcement, that the goods pertained to another, without the offering to make faith at that time of the poinding, was not sustained as relevant to purge the deforcement.—Also the Lords found that allegeance not relevant to stay der forcement, viz. that the defenders, being servants to L. Benholm their master, who was heritor of the land out of the which the goods were poinded, might lawfully stop the poinding for security of their master's farm, addebted for that year to him, by the debtor of that sum for which the poinding was executed, and which debtor was tenant to him also, and in which the master would have preference for his farm before other creditors. This allegeance was repelled; because, at the time of the poinding, and staying thereof, neither the master nor any other in his name, made mention of that cause of the stopping of the poinding, which, if it had been done, the party might have offered surety for the master's satisfaction, and so proceeded to his execution; and if that security had not been granted, the poinding might have been impeded without danger of deforcement; but no such intimation being then made for the master's farm, the Lords found, That the deforcement could not be now elided, by proponing now in this place upon the master's right, which was then omitted to be mentioned at the time of the execution, and was now only alleged, and offered to be tried to be a just debt.
Act. Advocatus Hope.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 231. Durie, p. 338.
