Found that altho' there were other goods, and no search for them, yet a poinding of piough-goods, in labouring time, was no spuilzie, but that there must be restitution.
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Lawson being debtor to Bishoptoun in a sum of money, he poinds some horses. Lawson raises a summons of spuilzie. The defence proponed was, Lawfully poinded. Answered. They were plough-goods in labouring time, and so by the 98th act 1503 were not poindable, the instruments of agriculture being exeemed from legal execution, both by the Mosaical law and the Roman. Replied, Non relevat, unless Lawson, the pursuer, offered to prove not only that they were plough-goods in labouring time, but likewise that there were other goods upon the ground belonging to the said Lawson, pursuer, sufficient to pay the debt, and which were either in the poinder's view or offered to be shewn him, or that he knew thereof. Duplied, Our law hitherto has required no more but to prove, there were other goods at the time on the ground sufficient to pay the poinder's debt, without saying they were shown or offered, or known to him; it being the messenger's duty to search for them; and it were an unaccountable hardship to oblige a debtor (to prevent his plough-goods from being ed) to expose and lay open all his other moveables to rigorous creditors, especially seeing such an offer of compliance might be construed as an homologation of the debt, and a passing from any objections he has against the same. Triplied, It were unreasonable to bind creditors-poinders to search all the ground, seeing they may be probably ignorant of the extent and limits of their debtor's land; and it is far more reasonable that the debtor (if he desires to redeem his labouring-beasts) shew and present his other goods; neither will this act, in obedience to law, import any acknowledgment of the debt, or legality of the poinding, or cut him of from any defences against the same. Some thought the debtor obliged to shew his other goods, if he would prevent the poinding of his plough-goods; but it being proposed, what if the messenger searched for other moveables and found none, if this would not be sufficient to liberate the creditor-poinder, even as the messenger's assertion in denouncing of lands to be apprised, that he searched for moveables and found none, is credited? Therefore the Lords, before answer, ordained the execution of poinding to be produced, to see if it bore any search for other moveables; but, however, the Lords seemed all clear, that esto there were other moveables, and no search for them; yet in this case it would not be found a spuilzie, but only infer simple restitution.
Thereafter Lawson, in a petition, having offered to prove, that, in the same place where they poinded the horses, there were seven milk-kine subjected to their view; and that the messenger and his accomplices, taking a drink at the time, sat down upon sacks of corn belonging to him, and yet poinded none of these, but only his plough-horses; the Lords allowed him a term to prove this condescendence.
Fol. Dic. v. 2. p. 94. Fountainhall, v. 2. p. 187.
