A party was decerned to deliver writs, or pay a sum. Not having been charged to deliver; but being poinded for the sum; the poinding found unlawful, and restitution, damages, and expences awarded.
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One Brown pursuing Blaickburn for spuilzie of four horses, the defender excepting upon a poinding of the same, for satisfying of a decreet obtained by Blaickburn against this pursuer; and this poinding being quarrelled, because it was deduced at Dumfermling, being the head burgh of the regality of Dumfermling; whereas this pursuer, whose horses were poinded, then of before, and ever since has dwelt within the royalty, viz. in the town of Innerkeithing, so that his goods could never have been lawfully poinded or apprised, except at the market cross of the head burgh of the sheriffdom, which is Gupar; and, albeit the goods were found accidentally within the bounds of the regality, in their bringing of coals to the pursuer's house, yet that was no reason to warrant the poinding, except it had been deduced at the market cross of Cupar; likeas, before the poinding was fully compleat, the pursuer had obtained suspension of that decreet, which he that same day had sent to Cupar, to have stopped the poinding, thinking verily that no poinding could be orderly deduced, but at the head burgh of the sheriffdom, within which he dwelt; and, finding that the defender had so circumveened him; upon the next day after the poinding, he intimates this suspension, both to the officer and to the party. Attour he alleged, he could not lawfully poind upon that sentence, because the same decerned the pursuer to deliver to this defender some obligations, that were alleged to be in his hands, or else to pay such sum of money contained therein; and this sentence being alternative, the pursuer, who was decerned, had the election to do any of them; and he never being charged upon that decreet, as he ought to have been, before he could have been poinded for the liquid sum; therefore, he alleged, the poinding could not be lawful, being so summarily execute. The Lords, albeit they found, that the poinding should not fall because the same was deduced at Dumfermling, the head burgh of the regality (for they thought, that albeit the party, owner of the goods, dwelt within the royalty, where the same was not execute, but that the goods being apprehended within the regality, might lawfully be poinded at the head burgh of the regality, and so the poinding was sustained, notwithstanding of that allegeance); yet in respect of the other above written points of the reply, the same was sustained, and the exception upon the poinding was repelled, to infer restitution of the horses, and prices therefor, to be modified by the Lords; and also for payment of such expences to the pursuer, for satisfying of the profits, and all that he could seek by this pursuit, as the Lords should modify.
Act. Baird.Alt.
Fol. Dic. v. 1. p. 35. Durie, p. 879.
