Effect of a disposition to moveables, with an instrument of possession.
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Corbet of Concorse pursues a spuilzie of certain goods out of his house at Glasgow against William Stirling, who alleged absolvitor, because he had lawfully poinded them from his debtor, in whose possession they were. The pursuer answered, That he offered him to prove that he had disposition of these goods from that party, from whom the defender alleged to have poinded them, and an instrument of possession thereupon; and that he had paid mail for the house where they were several years, and still when be came to Glasgow he did reside in the house and made use of the goods. The defender answered, That his defence did yet stand relevant, because the condescendence makes it appear, that the pursuer's right was from the defender's debtor, and any possession he alleges might be simulate; and the defender, in fortification of his legal execution, offered him to prove, that his debtor remained in the natural possession of the house, and made use of the goods as his own goods, and so, was in natural possession thereof, whereby he might lawfully poind from him. The pursuer repeated his reply, and further alleged, That one of the Bailies of Glasgow alleged that they were his goods at the time of the poinding, and offered his path. The defender answered, That that Bailie was neither the pursuer's servant, neither had commission.
The Lords found the defence for the poinder relevant, and more pregnant than the condescender's allegeance, and repelled that member of the duply anent the Bailie's offering of his oath.
