Poinding of the ground found effectual against the goods of tenants or of inhabitants within the burgh as invecta et iltata, but not against those of merchants not being tenants or inhabitants.
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Collet, an English merchant, and his factor; pursue the Master of Balmerinoch for breaking up the doors of two cellars which they had taken weekly for ware, and taking out the ware thereof. The defender alleged, Absolvitor; because he had a decreet of poinding of the ground of certain tenements, whereof the cellars were a part, and therewith had poinded the ware as invecta, in the tenement. The pursuer replied, That the poinding of the ground could only reach the proper goods of the tenants and inhabitants, and not the goods of others, which would mar all commerce; and by the act of Parliament in favours of tenants, they can be poinded only for one term's mail for their master's debt, which can be only understood of his real debts, which are debita fundi; for his personal debts could never affect the tenant's goods, but only real debts, by poinding of the ground, which is the case of distress, at is evident by the act 36th, 1469, and in this case, the pursuer's factor compearing, and offering to make faith that the goods were his, and although he had not, he hath rei vindicationem, and must he restored. It was duplied, That albeit tenants by the foresaid act suspending, would be only liable for what is resting, and one term current, yet otherways the poinding may proceed; and there is no ground for restitution, but only an action against the debtor for repayment. 2do, This restriction hath never been yet applied to tenements in burgh, which have no fruits, in place of which are invecta et illata.
The Lords found the act of Parliament to extend to tenements in burgh or landwart, and that the proper goods of the tenants and inhabitants only could be affected by poinding of the ground, and that the pursuer, or his factor, if they made faith that the goods were their own, and belonged to no inhabitant, it did infer a spuilzie, and if not, restitution only.
