Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Thomas Fotheringham of Powrie v. Sir James Oswald and Charles Murray of Halden
Date: 20 January 1697
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Phesdo reported Thomas Fotheringham of Powrie, against Sir James Oswald and Charles Murray of Halden, for holding count to him for the price of 300 bolls of malt, and of the copper and other brewing looms intromitted with by them, and belonging to Mrs Lawrie, and James Rait her husband, whereunto Powrie had right, both by disposition from them and as donatar to James Rait's escheat. Their defence was, That they being then tacksmen of the King's excise, and so owing them a considerable sum of bygones, they had lawfully poinded the same towards their payment.
Alleged,—This poinding was not in the terms of the Act of Parliament imposing the excise in 1661, which appoints that all poindings shall proceed upon decreets of the Commissioners, and be appreciated at the next parish church: Which method was not followed here; but a summary order by Halden's son, their sub-tacksman, to some soldiers to go and secure the said James Rait's readiest goods, &c. which was no sufficient warrant whereon to poind; and, though the Act of Parliament dispenses with the solemnity of carrying the goods to the head market-cross, yet it requires that they be apprised at the nearest parish-kirk;—all which was omitted.
Answered,—The rules prescribed by that Act 1661 were observed so long as the Commissioners of Excise stood bound to make up the deficiency in each shire; but, after the Acts 1681 and 1685, whereby the country was liberated of that, it became the ordinary practice for the tacksmen to issue out these summary warrants; and the tacks set to them by the treasury seemed to give them a general allowance.
Some of the Lords were for trying what had been the custom, seeing the manner of in-bringing the King's revenue is more summary and privileged than ordinary debts: Yet the plurality found the poinding illegal and unwarrantable.
The next defence was, That the malt was voluntarily delivered to them by Mrs Rait for payment of the King's dues; and she, being prœposita negotiis, might do it without her husband's special warrant, being for payment of such an onerous debt, and prior to Powrie's disposition.
Answered, 1mo.—He offered to prove much of the victual was delivered and sold off posterior to his disposition; 2do. Her being prœposita to the brewery might well empower her to manage and administrate, by selling out the drink, or what of the malt she could spare; but not to destroy and consume the hail subject, by giving away the whole malt, with the very cauldron and other instruments of brewing.
The Lords found, This was no regular deed of administration; and inclined to prefer Powrie on his double title of the disposition and gift of escheat. But it was started by some of the Lords, That the tacksmen's diligence of securing the malt, prior to the disposition thereof made to Powrie, might at least be equivalent to an arrestment; after which James Rait and his wife could make no conveyance or right of the same to another ereditor to the prejudice of the excisemen. Which point neither being debated nor reported, the Lords recommended it to the Ordinary to hear the parties on the same.
