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In an action of spuilzie pursued by Straiton against Preston for poinding of labouring goods in labouring time; the Lords found these two defences separatim relevant, viz. that the goods libelled were in the possession offrom whom they were poinded, who did not concur in the pursuit; 2do, That the defender offered to prove, that there was sufficiency of labouring goods left for labouring the pursuer's mailing, and that the ploughs were left going; but the Lords, for clearing the matter of fact, appointed a conjunct probation before answer.
Fol. Dic. v. 2. p. 94. Falconer, No 31. p. 16.*** Harcarse reports this case:
1682. March.—It being alleged against a spuilzie of goods, in the labouring time, That there was a sufficient number left behind for the labouring, and that the pursuer having parted with some part of the lands, and not put off any of the goods the time of the poinding:
The Lords repelled the defence, because there being other goods and corns in view, the defender should have spared the labouring goods. But thereafter, in November 1682, betwixt the same parties, the Lords sustained this defence to exclude the spuilzie, that the time a sufficient number of goods, more than was necessary for the labouring, was left.
