Scottish Court of Session Decisions

Subject_1 POINDING.

Hay
v.
Hay

Date: 13 December 1679
Case No. No 29.

A poinding found null, because the execution bore not that the messenger had appointed a sworn tasker to cast the corns, and to thresh and measure the proof at the sight of both parties.

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Hay of Kirkland pursues Patrick Hay for spuilzieing of his corns and two barn-yards, wherein lawful poinding being sustained, by way of defence, an execution of the poinding was produced, against which it was objected, That it was null, bearing “only poinding at the cross by a rip or parcel of corn, and pricing the bolls with the fodder;” but bearing nothing, “that the messenger choosed a skilful caster for proofing the corns upon oath, and that either party was allowed to see the proof casten and measured.

And therefore the Lords found the execution null and admitted the quantities and prices to the party's oath in litem; but ordained the fiars likewise to be produced, that thereby they might tax the price if the oath were exorbitant, and likewise would tax the quantities by the testimonies of the witnesses adduced by the pursuer, if his oath as to the quantities seemed exorbitant.

Fol. Dic. v. 2. p. 92. Stair, v. 2. p. 723.