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A poinding of plough-goods was sustained, unless the owner would prove, there were sufficient other goods for the debt and the rent.
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Goodsir having charged Wemyss for the payment of a debt, and he having suspended upon a reason of compensation, founded upon a decreet of spuilzie obtained at his instance against the charger; answered for the charger, That the decreet of spuilzie being obtained before an inferior court, upon this ground, that the plough-goods were poinded in labouring time, whereas there were corns and other goods upon the ground, which might have been poinded to the value of the debt; it was unjust and unwarrantable, seeing the corns and other goods upon the ground were subject and liable to the master's rent; so that unless it were offered to be proved, that there were as much corns and other goods upon the ground which might have been poinded for satisfaction of the debt, besides what would have paid the master's rent, he might lawfully poind the plough-goods; and the charger had raised a reduction of the decreet upon that reason which he repeated. The Lords reduced the decreet of spuilzie, unless the suspender would offer to prove, that, by and attour the plough-goods, there were as much corns and other goods upon the ground the time of the poinding that would have satisfied both the master's rent and the debt for which the goods were poinded.
Fol. Dic. v. 2. p. 94. Sir p. Home, MS. No 607.*** Harcarse reports this case:
1684. February.—In a process of spuilzie, it being alleged for the pursuer to elide the defence of lawfully poinded, That plough-goods were poinded in labouring time, when there were other goods poindable, such as corns.
Answered; The master's rent not being paid, for which the corns were hypothecate primo loco, the defender needed not to poind them.
The Lords found the answer relevant to elide the spuilzie. Here the tenant was poinding for an extrinsic debt from the sub-tenant, who was obliged to pay the master's rent, and relieve the tenant.
Harcarse, (Spuilzie.) No 861. p. 245.*** P. Falconer also reports this case:
1684. February 15.—Wemyss having suspended a debt resting by him to Goodsir, upon a reason of compensation founded upon a decreet of spuilzie recovered at Wemyss's instance against the said Goodsir, which decreet of spuilzie was recovered upon this ground, That the plough-goods were poinded in labouring time, when there were upon the ground corns and other goods which might have been poinded to the value of the debt; it was replied, That Wemyss, at whose instance the decreet of spuilzie was recovered, being sub-tacksman to Goodsir the charger, who was principal tacksman of the land, and having poinded the plough-goods for a personal debt, he had, for the ground-duty or rent, an hypothec in the corns and other goods belonging to the sub-tacksman; so that unless it were alleged, and could be proved, That beside the labouring goods, there were upon, the ground corns and other moveables sufficient to have satisfied both the tack-duty and also the personal debt, (the ground of the poinding), no spuilzie could be sustained. The Lords found, That the spuilzie could not be sustained, except it were alleged and proved, that by and attour the plough-goods, there were upon the lands the time of the poinding, other goods which were sufficient to pay both the tack-duty and personal debt contained in the letters of poinding; and therefore reduced the decreet of spuilzie.
