Process of spuilzie of labouring goods was sustained, the pursuer positively proving that there were other poindable goods in view, and the messenger's execution to the contrary was disregarded.
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William Lundie intents action of spuilzie against William Auchenleck, for spuilzing and away-taking his plough, upon the 10th March last, in the time of labouring, whereby he was prejudged exceedingly, his lands lying partly untilled, and what was not tilled was not sown. It was alleged by the defender, Absolvitor, because he offered him to prove, that the pursuer had sold the goods libelled, long before the alleged spuilzies; 2do, The goods were lawfully poinded; to which it was replied, The allegeance ought to be repelled, unless it were alleged that the goods had not only been sold, but likewise delivered, seeing traditione sola transfertur dominium, and emptione the defender could have only jus ad rem, which would only be an action of delivery of the goods, but had no real right in the goods, and therefore could not break the public peace, to seize upon the said goods, brevi manu, without a sentence of a judge; 2do, The foresaid allegeance ought to be repelled, because the goods libelled were plough-goods, actually ploughing upon the 10th March, which was the time at which the same could not have been poinded, unless there had been no other moveables upon the ground of the lands belonging to the pursuer; but so it is, the pursuer offers him to prove, that there were corns in the barn-yard, and corns in the barn, and horse, nolt and sheep, far exceeding the value of the sums alleged poinded for, besides utensils, and therefore the defender must be liable for a spuilzie, having maliciously, contrary to the laws of the kingdom, poinded the pursuer's plough-goods, whereas, within the poinder's view, there were far more moveables than would have satisfied the debt. To which it was duplied, by the defender, That he offered him to prove, that the of ficer not only made search, but likewise enquired at the pursuer, if he had any moveables else upon the ground. To which it was triplied, That the officer's execution, albeit it were produced, could make no faith he being a party principally called in this process, against whom the pursuer does insist; 2do, The pursuer offers him to prove, that he was alibi distant ten miles the time of the poinding, and so the messenger could not have enquired at him; 3tio, The pursuer offers him to prove positively that there were corn-stacks in the barnyard, and horse, nolt, &c. within the defender's view, which would have satisfied the debt. The Lords repelled the first allegeance, founded on the condition, in regard of the reply made thereto; and also repelled the allegeance of poinding, in respect of the reply and triply pronounced for the pursuer, whereby it is offered to be proved, that there were more goods poindable upon the ground of the lands, and in the poinder's view the time of the alleged poinding, than would have satified the debt.
