[1676] Mor 6203
Subject_1 HYPOTHEC.
Subject_2 SECT. II. Extent of hypothec upon stocking.
Date: Park
v.
Cockburn of Ryslaw
9 February 1676
Case No.No 9.
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A tenant having sold nine score of sheep, and the same being carried off the room where he was tenant; the master of the ground, by warrant of the sheriff, as having therein the right and interest of a tacit hypothec, did seize upon the same.
Tre Lords found, That neither the master nor the sheriff, without citing the party, could seize upon the said goods, not being upon the master's ground, nor give warrant to that purpose; and yet seeing quævis causa excusat a spolio, they restricted the pursuit to wrongous intromission, and allowed to the master his defence for retention of the goods, until he should be paid of his year's duty.
Reporter, Newbyth. Clerk, Hamilton. *** Stair reports the same case. John Park pursues Ryslaw for a spuilzie of sheep, who alleged absolvitor, because the sheep were pastured upon his lands, and so they were hypothecated for his rent, and were carried away privately in the night by his tenant, and sold by him to the pursuer, his good-brother, who had them near the Border, to have carried them over to England; and, therefore, the pursuer got warrant from the sheriff to bring them back. It was answered, Non relevat, because though heritors may detain the tenant's goods on the ground for the rent, when there doth not sufficiency of goods remain, yet they may not summarily, without order of law, take them out of the possession of persons who bought them, otherwise all commerce would be marred; and the sheriff's warrant, without process or citation, is of no importance, for the most he could have done, was, to arrest or secure them where they were.
The Lords found that the pretence of the hypothecation, and of the sheriff's warrant, might excuse from the rigour of the spuilzie, but that it was wrongous intromission, and that neither sheriff nor master of the ground could warrantably bring back the goods ex intervallo, except it had been recently after the removal thereof, but that the buyer was liable, as intromitter, for the year's rent, if there were not sufficient goods beside; and to shun multiplicity of processes, they ordained what would be thereby due to the defender as master of the ground to be instructed, that upon payment thereof, the sheep might be restored.
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