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.
Thomson v. Johnston
Date: 15 June 1710
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Davidson of Ruckan being debtor to one Johnston, wright in Govan; he, discovering a parcel of bark, caused poind it. Thomson, maltman in Glasgow, being likewise creditor to Davidson, and putting his caption to execution, the messenger makes the kings keys to the doors, and missing the man, he poinds the bark, and carries it away; and Thomson, his employer, sells it for £80 Scots. Johnston, the first poiniler, being informed of this, intimates his right, and requires him, by way of instrument, to restore the bark or the price; and, on his refusal, pursues him before the regality of Glasgow for a spuilyie, and obtains a decreet for restitution; which being suspended, Thomson alleged he poinded bona fide, knowing nothing of the former; and the bark was said by all the neighbours to be the common debtor Davidson's. 2do, The first poinding was informal, the execution not bearing that the precept or letters of poinding were publicly read, either at the place where the goods poinded lay, or at the market cross, that the notary, witnesses, and apprisers might know the messenger's warrant; and it wants the oyesses and the offering the goods back; all which my Lord Stair requires, lib. 4, tit. 47. Next, the bark at a random conjecture is appreciated at thirty-six bolls, whereas, in fungibles, quæ pondere, numero, et mensura constant, it should have been measured; and our own law, by the 30th Act Parliament 1686, appoints the same; and therefore the Lords, on the 30th December 1679, Hay against Hay, found a poinding of some stacks of corn null, because it was only done by a rip or parcel drawn out of the stack, whereas he should have chosen a skilful caster for proving the corns upon oath; and without this there should be no rule to secure the debtors in poindings, but creditors may take the goods at what rate they please.
Answered,—Esto he was ignorant of the prior poinding, and so bona fide poinded again, ergo he should not restore to him who was prior tempore in diligence, is a plain non sequitur, and an inconsequential sophism; but the truth is, he knew the house where the goods lay was not the debtor's dwelling, for die first poinder had put them there under his own lock and key; and to search for the rebel there was a mere sham pretence to get access to the bark; and he afterwards changed the lock, and put on a new one, at his own hand, most unwarrantably: all which confirm his knowledge or suspicion. And though they were appreciated by the first poinding to £96, yet he sold them for £80. And, as to the nullities, the execution bore in general the goods were lawfully poinded, which presumed all solemnities necessary: And a poinding being the sentence of a judge, as Sir G. Mackenzie, tit. Arrestments and Poinding, tells, How could a messenger rescind, annul, or repel a former complete poinding, seeing par in parent non habet imperium, and it should have been first reduced by the sentence of a superior judge? If this were allowed, the diligence of prior creditors might be easily frustrated and evacuated. And, as to the objection that the bark was not measured, the poinding per aversionem has ever been sustained; as, in the case of poinding a quantity of iron without weighing it, 19th July 1675, Coutts against Harper; and in the poinding of some malt, the Lords found the poinding completed before measuring, 4th December 1679, Forrester against The Tacksmen of the Excise of Edinburgh, seeing they were both weighed and measured afterwards: and the quantity of bark is obvious to the sight of the eye. Neither is Hay's case, about the rip of corn, to the purpose, for the place it was pulled out of might be spoiled and wet, and the rest of the stack good, so the apprisers could make no right estimate thereby.
The Lords preferred Johnston, the first poinder; repelled the reasons of suspension, and ordained Thomson to restore; and thought, seeing he had sold them at an under value, lie might be decerned in as much expense as would make up the £96, which was the sum of the first appreciation.
