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Found contrary to Hays against Strachan, No 36. p. 10522., as to inchoate poinding.
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There is a competition betwixt Thomas Cathcart, Bailie of Ayr, and Mr Robert Paton minister at Barnwell, about the corns of one Reid their debtor. Cathcart poinded the corns standing in the stooks in August and September 1698, and carried a rip of them to the market-cross. Paton, for his year's stipend and some preceding rests, poinds them ere they be threshen, and carries away as much as will answer the teind; and alleged, The first poinding not being completed by casting the corns to a proof, there was nothing to impede him from poinding them again for his stipend, seeing decimæ debentur parocho. Answered for Cathcart, This was a plain spuilzie, seeing the property of the corns was fully conveyed by my poinding prior to yours, and I could do no more. Replied, Your inchoate diligence could never hinder me to poind; neither was there any thing intimated to put me in mala fide, and my debt is privileged, being debitum fructuum. The Lords found no spuilzie, but that the minister had right to retain, in so far as extended to Reid the common debtor his proportion of a year's stipend, but not for any bygones preceding, and that he must restore the superplus.
