A poinding null, where the apprisers at the crop were the same with those on the ground.
Click here to view a pdf copy of this documet : PDF Copy
In a poinding of a parcel of sheep belonging to James Geddes of Rachan, at the instance of James Mitchell tenant in Castlehill, the same apprisers who had valued them on the ground before carrying away, were employed again to apprise them at Peebles, the head burgh of the shire; after making enquiry and search for the sworn appretiators, and burley men of the town, who could not be found, nor any others proper for that purpose, as the execution bore.
Mr Geddes pursued James Mitchell in a spuilzie, and the Lord Ordinary 14th February 1750, “Sustained the objection made to the poinding, That the apprisers of the goods, when brought to the market-cross, were the same persons who apprised the same upon the ground of the lands from which they were driven; and found the poinding void, and the defender liable for the highest prices of the goods, as they should be proven to have been worth, at the time they were taken off from the ground; but found the defender not liable in the penal consequences of a spuilzie.”
Pleaded in a reclaiming bill, There is so strong a custom of executing poindings in this manner, that it might affect too many cases to find them null: It is not easy to say for what reason the double appretiation has been instituted in poindings; possibly the first valueing has been only intended as a rule to the messenger what quantity of goods to carry away, that he might not exceed, and thereby occasion an inconveniency to the debtor; and this notion seems to be favoured by what Lord Stair says, b. 4. tit. 47. § 31. On which supposition there is no necessity that the apprisers should be different.
Answered, It is certain in law there ought to be two apprisings; and if the apprisers are the same, there is really but one: According to the pursuer's notion, there would be no necessity of any apprising on the lands; but so necessary is it, that in the case of ministers poinding for their stipends, it is sufficient without going to the cross, act 21st, parl. 1663. Sufficient indulgence has been allowed to any custom, that the defender has not been subjected to the penal consequences of a spuilzie.
The Lords adhered.
Act. A. Macdowal.Alt. Lockhart.
D. Falconer, No 244. p. 296.*** Kilkerran reports this case:
In the spuilzie pursued by James Geddes of Rachan against James Mitchel in Castlehill, and John Williamson messenger, their defence being lawfully poinded, the executions were objected to as null, on this ground, that the same persons were the apprisers at the market-cross, who had been apprisers on the ground of the lands.
The Lord Ordinary having advised with the Lords, “Sustained the objection made to the poinding, that the apprisers of the goods when brought to the market-cross, were the same persons who apprised the same, upon the ground of the lands from which they were driven; and found the poinding void, and the defenders liable for the highest prices of the goods, as they shall be proved to have been worth at the time they were taken from off the ground; but found the defenders not liable for the penal consequences of a spuilzie; and allowed a conjunct probation to both parties prout de jure, with respect to the foresaid prices of the goods at the time they were taken off the grounds.”
On advising bill and answers, the Lords unanimously “adhered;” and refused to allow a proof before answer upon the usage and custom of messengers, which the defenders prayed for.
