If cattle poinded for trespass are used by the poinder, and not put in a poind-fold, it is spuilzie.
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Patrick Duncan pursues a spuilzie of a horse against Patrick and William Kids, who alleged, Absolvitor; because they found the horse pasturing upon their grass, and did, therefore, poind the horse, till the skaith was paid, and offered him back within 48 hours, upon payment of 40 shillings for the skaith.
The Lords repelled the defence, unless it were proponed in these terms, that the horse being found upon the property, and in the skaith of master or tenant thereof, he had been apprehended, and brought to a poind-fold, or some other safe place, where there was sufficiency of grass, or fodder and water, and that he might be detained there till the skaith was apprised, and decerned by those having jurisdiction in the place, as baron, heritor, or others, and that thereupon the horse was lawfully appreciated, with the ordinary solemnities, for satisfaction of the skaith; but found, that, otherwise, he might not be either detained or made use of.
Fol. Dic. v. 2. p. 95. Stair, v. 2. p. 414.*** Gosford reports this case:
1676. February 13.—In a spuilzie, pursued at Craigie's instance against Duncan, of a horse taken off his land, whereof he was undoubted proprietor; it was alleged, Absolvitor; because the defender had a tack from the Magistrates of Dundee, who had both right and constant possession of the said lands, and thereupon had a declarator depending; and, as to the violent profits, he could not be decerned; because, he had offered back the horse within 48 hours, upon payment of the damage. It was replied, That the pursuer being in libello, and in a pursuit of spuilzie, ought to be preferred to the probation of his undoubted right of possession; and, for the violent profits, they ought to be decerned, because, it was offered to be proved, that the defender did immediately employ the horse spuilzied upon his own work, and for carriage, within the town of Dundee, and did not keep him in any place where the pursuer was certain to find him.—The Lords, as to the first part, did ordain mutual probation, the pursuer being in spatio et libello; but, as to the second, they found, that an heritor, who poinds a neighbour's goods for damages, ought to have poind-folds, or other places, to keep them in, where they might have grass, or water and fodder, and so may be found out, and required back; otherwise they are liable to violent profits.
