Scottish Court of Session Decisions

Subject_1 POINDING.

Lieutenant-Colonel John Erskine of Carnock
v.
Lady Betty Boswell, and L Auchinleck her Husband.

Date: 11 March 1707
Case No. No 43.

A poinding warrantable, although the messenger refused to give the debtor an execution before the poinding was completed; and the taking of corns poinded from tenants without a sworn metster found legal, in respect the corns were measured and delivered by the tenants themselves.

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A poinding of the ground of Kincardine at the instance of Lady Betty Boswell and her husband, for some bygone arrears of an annuity assigned to Lady Betty by the deceased Countess her mother, was quarrelled by Colonel Erskine the heritor, as unwarrantable, because; 1st, The execution bears, That the messenger, after he had poinded and received from the particular tenants therein named, several quantities of victual, proceeding to complete the poinding of other corns, refused to give to the Colonel an execution of the poinding, upon pretence, that as yet he knew not the quantity that would be delivered; which was an absurd excuse, considering that there were different poindings from different baronies and tenements, upon different days; and Stair's Instit. Lib. 4. Tit. 47. § 33. asserts, That the executor of poinding is bound to offer to the party a copy of the letters and signed executions, that the same may be a sufficient instruction of payment pro tanto. 2dly, There was no sworn metster or caster chosen by the messenger, as ought to have been done, December 13. 1679, Hay contra Hay, No 29. p. 10517.

Answered for Lady Betty and her Husband; the poinding was most regular in so far as, 1st, The messenger promised to give the Colonel an execution whenever the poinding was completed, which he offered when the poinding was over, hand till then he could not give it; for how could he condescend on the quantity, before he received it from the tenants. 2dly, There was no necessity for a sworn metster or caster in this case; because the messenger having poinded the corns by rips, and the meal by samples, the tenants did there-after thresh out their own victual, and willingly brought the species of bear and meal, and met the same to the messenger; and they could expect no metster more favourable than themselves.

The Lords found, That the proceeding to poind was warrantable, though an execution was refused till the poinding was completed; and that the taking of the corns delivered and measured by the tenants without a sworn metster or caster was legal.

Fol. Dic. v. 2. p. 92. Forbes, v. 1. p. 140.