William Brodie and Others, v. John Watson, Tenant of the Mains of Friercarse
Date: 19 February 1714 Case No. No. 63.
Poinding for services called boon work, unwarrantable.
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In a process of spuilzie, at the instance of William Brodie and others, against John Watson, for taking some moveables out of the pursuer's house, the defender alleged, for eliding the spuilzie, that he being tenant to James Maxwell of Barncleugh, in the four-pound land of Friercarse, who stood infeft therein with the services used and wont called boon work, to be paid to the possessors of the neighbouring grounds the pursuers are at present in possession of, viz. the performance of a few days work for labouring the defender's ground, and shearing his corns, the said right had, past memory of man, been usually made effectual by summary drawing of small poinds from deficients answerable to their omissions, which is all the defender did in this case.
Replied for the pursuers: No immemorial custom could warrant intromission with another's goods, without the authority of a Judge, which is moraliter turpe. No person can sibi jus dicere. Nec est singulis concedendum quod per magistratum publice potest fieri, ne occasio sit majoris tumultus faciendi, L. 176. D. De Reg. jur. Stat. of King Robert I. Cap. 1. And lately the Magistrates of Ayr were fined by the Lords in 500 merks for causing summarily incarcerate one Ramsay for not paying some customs due to the meal-market and to the mill, albeit they pleaded immemorial custom of so doing.
Duplied for the defender: The pretence that the poinding ought to have been by warrant, and not summarily, is trifling; for the tenants of the servient tenement could not be compelled to performance in the usual way, by decreet or precept of poinding, or the like diligence, the expence whereof would have exhausted the value of the claim; and if the ancient and necessary custom were not sustained for performance of such a day's work, which admits no delay, the servitude would be entirely useless and elusory. Besides, quilibet coloratus titulus is a sufficient defence to free from a spuilzie which is penal. Nor is this custom singular; for the Marquis of Annandale and the Earl of Nithsdale are in constant use of exacting payment of their mart-kine in the like way and manner.
The Lords repelled the defence founded on the custom of poinding, and found the same unwarrantable.
