Creditors pursuing tenants for payment of a particular year's rent, and being suspended on a multiple-poinding, cannot lawfully poind for any other year's rent, till the suspension be discussed.
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Eupham Bruntfield pursues Trotters for contravention, the deed whereof was the taking away of her oxen out of her wains, in harvest 1633, casting down the corns, and taking away her kine; against which the defenders excepting, that they poinded the same lawfully, conform to a decreet for poinding of the ground for an annual-rent of £.100, owing for the space of six or seven years by-past, preceding the year 1633; the pursuer replied, that the decreet was suspended before the poinding; to which it was duplied, that the suspension was only in a double-poinding, raised by the tenants of the lands out of which the annual-rents should have been paid, complaining that they were distressed in the said lands by the annual-renter, on the one part, and by the pursuer, claiming right by wadset to the duties of the lands, on the other part, for the crop 1633; which double-poinding being only raised for that year, and no other year, and they suspending both the parties' rights, and charges, and decreet, only for that one year, the same could not extend to any of the preceding years contained in the sentence, which were not questioned by that suspension and double-poinding. The Lords repelled the exception and duply on the poinding, in respect of the said preceding double-poinding and suspension, which, albeit it extended only specifice to the crop 1633, for the which no poinding was executed, yet the Lords found, that, during the dependence, and before the discussing thereof, the party could not misknow by poinding for any year whatsoever contained in the decreet, seeing both the parties were summoned in the double-poinding to bring with them their rights and decreets, as also this decreet for the annual-rent, and to see and hear the same suspended; and so the decreet being called for to be suspended, he could execute the same for no year: Neither was it respected, that the defender alleged, that the same was suspended for the year 1633, and none other preceding; for it was elusory to think that the tenants would crave to have their goods and gear safe from poinding that year, and not to think that they desired to have the like for all years preceding, which the Lords found to be the just effect of the suspension; but the Lords reserved consideration and modification of the contravention to themselves at the advising of the cause, after probation was concluded.
Act. Craig.Alt. Trotter.Clerk, Gibson.
Fol. Dic. v. 2. p. 414. Durie, p. 733.
