Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Trons v. The Laird of Pourie
Date: 24 February 1708
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Trons having been his tenant, and removing from his ground to the Laird of Guthrie's lands, and being in arrear of his rent, he takes a decreet against him, and poinds first his corns, and then, on another day, his horse and cattle. Trons gives in a complaint to the Lords, That both the poindings were spreto mandato, being after a sist of execution obtained by him on a bill of suspension.
Alleged,—Non relevat, seeing the sist was not intimated to me till long after both the poindings, the sist being on the 6th January last, and the first poinding on the 7th, and the second on the 12th of the same month, and no intimation of the sist till the 23d; till which was done I was in bona fide to poind for payment of a just debt owing me by a bankrupt tenant seeking to cheat me.
Answered,—The sist was intimated in the usual form in all such cases, at the reading of the minute-book, and by Pourie's advocate and agent taking out a double of the bill, and making answer to it, who were obliged to acquaint him of the sist. Likeas, he knew, before ever he poinded, that Trons was gone to Edinburgh to seek a suspension, and yet he proceeded, and broke open doors without special letters to that effect, and poinded plough goods in labouring time; which both the Roman law and ours declare a spuilyie.
Replied,—As to the first poinding, it being the day immediately after the sist, it was, per rerum naturam, impossible it could come to his knowledge. And quoad the second, though there intervened five days, yet he is ready to depone nobody acquainted him therewith; and it was very hard to make him liable for invincible ignorance; neither is there any law obliging his doers at Edinburgh to send and acquaint him upon the first in-giving of a bill of suspension. And, as to the poinding of labouring goods, the Act of Parliament 1503 has a plain exception, unless there be as many other goods on the ground as will pay the debt. Duplied,—They did not plead his poindings so high as to import a positive contempt of the Lords' authority, seeing he might be ignorant of the stop, but only to infer restitution of the poinded goods, seeing he knew he was negotiating for a suspension, and ought not to have anticipated lite pendente; during which time nihil est innovandum: and here, scire et scire debere in jure cequiparantur; and, he trusting to his agents, must answer for their care and diligence: qui per alium quidfacit per se facere videtur.
The Lords thought, if the tenant would find caution for the rent, they might order the whole goods to be restored; but, he not being able, they made a great distinction between the first and second poinding: for, quoad the first, he could know nothing of the sist, being the very next day; but the second was at that distance of time that he might have been very well advertised; and his doers having neglected it, they sustained the sist to infer restitution of the goods taken away by the second poinding, seeing, at that time, he either did or might have known of the sist. And whereas it was urged he might have sent the sist immediately away to intimate, the Lords considered the poor man was in no safety here at Edinburgh; for, not having the sist to show, a messenger might have clapt him up in prison; and he had no present remedy till his bill was returned again to stop it.
