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One George Lesly, merchant in Edinburgh, obtaining decreet against L. Ludquharn for 1350 merks, he arrests for satisfaction thereof in the hands of George Nune in the Canongate, certain coffers with clothes therein, and silver work pertaining to Ludquharn, being in the said George Nune's house, and intents action against him, to make the same forthcoming; who alleging, That since the arrestment, another creditor poinded the same, by virtue of letters of poinding, and letters to make open doors; and the messenger, by virtue thereof, had taken out the said chests and trunks out of the defender's house, where they were input by the Laird of Ludquharn, and so this ought to liberate this defender, who could not resist this execution, done by authority of the King's letters;—and the messenger, and the pursuer replying, That the poinding of the said trunks by another creditor, could not excuse this defender, in whose hands he had arrested the particular goods which were within the trunks, viz. the clothes and silver work, specially libeled; and it is not sufficient to say, that the trunks and goods therein were poinded, except he condescended upon the special and particular goods which were within the said trunks, that he may know what the same were which was poinded, and the avail thereof, and how far the debt was satisfied thereby, or what superplus, was thereof;——The Lords found the exception relevant, notwithstanding of the reply, to liberate this defender from this action, and that the defender ought not to be compelled to condescend upon the goods within the chests, which he could not do, seeing the same stood only in the defender's house, input therein by the Laird of Ludquharn, who keeped the keys himself, and were not in the defender's hands; but the same trunks being taken out by the messenger, and apprised by him, the defender was altogether ignorant what the messenger found therein: And the Lords found, that the said poinding freed the defender of the arrestment, without prejudice of the pursuer's action against the poinder thereupon prout de jure, which the Lords reserved to him against the poinder, as accords.
Act. Nicolson.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 178. Durie, p. 795.
