After the poinding is ended, however recently, the messenger, or party poinding, is not obliged to admit the oath of any person, to prove the property to be his, who cannot therefore recover it summarly.
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Harper having poinded some iron from Cotts his debtor, a brother of Cotts gave in a bill, representing, That he had appeared before the messenger, executor of the poinding, and had offered to make faith, that the iron poinded did not belong to the debtor, for whose debt it was poinded, but to the petitioner his brother; and that the messenger against law had proceeded; and, therefore, desired that the goods might be summarily restored.
The Lords ordained the parties to be heard upon the bill, in respect the parties and messenger lived in Edinburgh.—It was alleged for the defender, Absolvitor; because the pursuer did not appear before the solemnity of poinding was ended and complete. It was answered, That the pursuer appeared within an hour, or thereby, after the poinding, at the time that the iron poinded was weighing in the weigh-house, before it came in the actual possession of the creditor.
The Lords found, that, after the poinding was ended, the messenger, or party poinder, was not obliged to admit of the oath of any person; and, therefore, refused to cause the goods to be summarily restored, but left the party to his ordinary course of proving his property in the iron in question, as accords.
Fol. Dic. v. 2. p. 93. Stair, v. 1. p. 342.*** Gosford reports this case:
In a spuilzie, pursued at Colt's instance against Harper, it was alleged, That the goods were lawfully poinded. It was replied, That the pursuer did come to the ground of the land where the goods were carried, and there did offer to make faith, that the goods belonged to him, and not to the debtor, for whose debts they were poinded. It was answered, That any offer to make faith was not debito tempore, the poinding, and whole executions thereupon, being complete.—The Lords assoilzied from the spuilzie; and found, that the goods being carried to the Market Cross, and apprised for the debt, before any offer to make faith that they belonged to another, were lawfully poinded, and could not be liable to a spuilzie; reserving, by an ordinary action, rei vindicationem.
