Whether a messenger was guilty of spuilzie who poinded goods, to which a third party showed a disposition, which he refused to swear was not in trust?
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Dumbeath having poinded my Lord Broadalbin's goods, my Lord Glenurchy, his son, compeared at the cross, and offered to make faith, that the goods were his; and for clearing thereof, produced a disposition and instrument of possession; but having refused, at the messenger's desire, to depone if the disposition was to his own behoof, or in trust to his father's behoof, the messenger proceeded to the poinding, and the goods were appretiated at a very low and inconsiderable price. My Lord Glenurchy raised a spuilzie upon this ground, That the messenger should have sisted upon the offer to make faith without farther expiscation; and by custom it is sufficient to send a disposition, though the owner be not present; his presence to make faith being required where he has no title in writ.
Answered: The sending of a disposition would have sufficed to stop the poinding, had not the pursuer been present, and by his refusal to depone on the trust gave rise to suspicion. 2do, If mock dispositions in trust, when the haver refuses to depone on the trust, would secure against poinding, then all poinding would be disappointed.
The Lords having considered a probation hinc inde before answer, and finding it suspect upon both sides, except as to four of Glenurchy's own horses, which were not contained in the disposition, they found the defender liable in a spuilzie quoad these four horses. And not being clear as to the rest of the goods, they appointed a new probation of the true value of the goods poinded, without respect to that in the executions, in order to restitution; and delayed to consider if the messenger was punishable for proceeding to poind after the party offered to make faith in manner foresaid. And the Lords were the more tender to find it a spuilzie as to the cows, because it appeared, from a probation led in a reduction of the disposition in favours of the pursuer upon the act 1621, that the property of these cows was not my Lord Glenurchy's, but Broadalbin's.
