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In a count and reckoning, at the instance of a second appriser against the the first, whom he was not within year and day of, the pursuer pretending, that the defender was satisfied, and paid by his intromissions; it was alleged for the defender, That, since his entry to possess, the tenants in such and such rooms had not paid all the years' duties, although he had done reasonable diligence against them by horning and denunciation, and had raised caption, though he had not executed the same.
Answered for the pursuer: The defender ought to have poinded.
Replied: Comprisers are not obliged to poind.
Duplied: The defender having, in a competition, excluded the pursuer, he ought to do more than ordinary diligence.
‘The Lords found, That, seeing the defender excluded the pursuer, he ought to have poinded, unless he allege and prove, that the poinding would have endangered the laying the lands waste, though in the case of no exclusion, denunciation was a sufficient diligence.
Fol. Dic. v. 1. p. 237. Harcarse, (Comprising.) No 287. p. 67.
