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Scottish Court of Session Decisions >>
Ballantine v Watson. [1709] Mor 10526 (15 June 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor2510526-044.html Cite as:
[1709] Mor 10526
Growing corns found poindable, though they were alleged pars soli, and not poindable.
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Weir of Kerse, being debtor to Ballantine of Craigmuir, he registrates his bond, and charges him with horning, and arrests, on the 5th of August, the corns growing on some lands in Newbottle parish, belonging to his wife in liferent, and so to him jure mariti, and by sworn appretiators liquidates them conform to the quantity of the acres whereon they grew, and took a rip of them to the market cross. Kerse, on the 14th of August, dispones his whole crop of corns to Watsons, his wife's children of a former marriage, as creditors by a bond of provision; and they, by virtue of that disposition, do intromit with the corns and sell them. A competition arising betwixt Craigmuir and them, it was objected, that Craigmuir's poinding, being of growing corns yet unripe and uncut down, was unprecedented and contrary to law, they being pars fundi, and not poindable till they were separate from the ground; neither was there any form or stile for such practice in our law, nor could the quantity and value of it be liquidated, and therefore the disposition, though posterior, ought to be preferred. Answered, Growing corns upon the ground could be as well valued and apprised as when they were cut down and stacked in the barn yard, either by measuring the ground, or by trying how much seed was sown upon it; and corns, even before their separation from the ground, are ever reputed moveable, and fall under both executry and escheat, and are not like a sylva cædua, which taking a long tract of years before it can be cut for use, does belong to the heir; but corns being among those industrial fruits that are reaped once a year, if he who tilled and sowed the ground die before they be ripe, they fall to his executors, and have been always reckoned inter mobilia; and they are as capable of an appretiation and poinding as corns in the barn yard, the form of affecting them being set down by the Lords on the 24th Nov. 1677, Lord Halton, No 26. p. 10515, that they must be casten to the proof by sworn taskers, and so threshen out; and if they exceed the debts, then the surplus must be offered to the debtor. The Lords found the arrestment and poinding of the corns, though growing on the ground, legal and warrantable, and preferred it to the disposition; and though Craigmuir might pursue a breach of arrestment and a spuilzie, for their seizing of the corns after he had laid on his arrestment; and so claim violent profits, if he pleased.
Fol. Dic. v. 2. p. 92. Fountainhall, v. 2. p. 503.
*** A similar decision was pronounced 6th July 1727, Niven against Grieve. See Appendix.
