Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Ruthven of Reidcastle v. Pitcairne and Arbuthnet
1673.
November.
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In an action pursued by Ruthven of Reidcastle contra Pitcairne, and one Arbuthnet, for redelivery of some corns and other goods and cattle, the first had poinded, and the second had bought from one of his tenants, the same being hypothecated to him for his year's farm.
Alleged for Mr Pitcairne, That the master's hypothec could not be so exorbitantly extended, as to give him interest to repete his tenant's goods or corns poinded for lawful debt, unless either he had appeared at the poinding or apprising, and stopped the same upon his right of prelation to all creditors quoad an year's rent, or that he will say that ipsa corpora are extant; for if the species be bona fide consumptæ before any question was moved by the master against him, how can they be condicted? Besides, it were to destroy all commerce.
The Lords inclined to repel the allegeance, and find the goods poinded, though bona fide used and alienated, might quoad their value be repeated. But this were to make it a very hask privilege. See Sir George Lockhart's thoughts against it supra, February, 1671, No. 146, and the citations from Dury there.*
For the other defender I alleged absolvitor; because I offered to prove by witnesses, that the tenant had, at the time when he sold these goods, at least betwixt Yule and Candlemas, as much corns (for utensilia and stocking is not enough) as would pay his master that year's farm. But in proving thereof, special notice would be taken, that witnesses be used who know what was his yearly duty he paid to the master, and the precise quantity of the corns he had in his barn or barn-yard, (for his growing corns will not be accounted as sufficient, since they must pass in account for another year,) and be interrogated particularly thereon; and if either this be omitted, or the witnesses ignorant thereof, the exception at the advising will be found not proven by the Lords.
Advocates' MS. No. 427, folio 228.
* See M'Kenzie's Observes on the Act 1621, p. 104. Dury, 3d February, 1624, Hayes contra Keith, in fine.
