Eodem Die [8 March 1694]. Post meridiem
D1694/3/14
D1694/3/14
Judicial Proceeding
[James Dewar, merchant in Pearth]
Anent our Soveraigne Lord and Ladies letters intented and pursued before the Lords of their Majesties privy Councill at the instance of James Dewar merchant in Pearth with concourse of Sir James Stewart ther Majesties advocat for their highnes intrest in the matter underwritten a making mention, That quher by the Lawes of this and all other weell governed realmes, The masterfull oppression and Spulzie Especiallie when the same are done and acted under Colour of Law, and to the abuse therof are Crymes of a high nature and severly punishable yet nevertheless It is of veritie that Patrick Hay merchant in Pearth upon the pretence of a decreet recovered against the pursuer at his instance before the baillies of Pearth for the sum of nyntie four punds scots and Jannat Dobie Spouse to Charles Dobie baxter ther upon the pretence of another Decreet at her instance against the said pursuer before the Lords of Councill and session for the sum of ane Hundreth and sixtein punds money forsaid The said Patrick Hay and Charles Dobie came upon the twentie one or ane or other of the dayes of the moneth of January last and under pretence of poynding seazed or caused seaze upon the persuers wholl Chop and goods therin, The same goods being of all sorts as is usuall in Chops of the Countrey and of value no less then five thousand punds scots and also upon his houshold plenishing and caried all away without ever causeing inventar the goods or makeing any valuatione therof upon the place as the custome of poynding within the said burgh Requyres Bot on the Contrary they and either of them refused the offer made by the pursuers freinds (he being at the time absent in Edinburgh) To have the goods first seen and inventared and not to have taken them a way as goods abandoned to be Imbazled at every ones pleasure and therfore David Mckay, Alexander Donaldson, Alexander Cuttie, and David Cachran toune officers Imployed in the said poynding and who at their oun hand hade at the beginning taken the keyes of the Chop out of the window wher it Lay and did open the Chopes doors therwith, Which they ought not to have done, without a speciall warrand as also David Moncreif messenger and Androw Grant and Margaret Frissell servants to the said Charles Dobie Caried away by themselves and others the haill forsaids goods before they caried them to the marcat cross, The said Charles Dobie Caried and Caused Carie them to his oun house Lykeas in this disorder many of the saids goods were Caried away and Imbazled by the Countrey people whom they sufered to take them away at ther pleasure, It being then the marcat day And the said Patrick Hay and Charles Dobie and the messenger and officers haveing gott persones to be appryssers viz Henry Miller bookseller William Sharp Flesher, John Scot, John Watson, Henry Reid wright in Pearth and James Scot Homerman William Craigle Cuttler, George Anderson and John Naper wrights Androw Home Fish mynger John Murray Bell man Alexander Paterson Tinclar and Willim Stewert Weaver all in the said toune of Pearth persones nowayes fitt to sett a prize upon such merchand wair as some of themselves Declared And declyned untill threatned and Compelled by David Monteith baillie of the said burgh of Pearth, Patrick Hay did cary his apprysers with the toune officers first to the house of James Mckenzie brewar and after they hade Drunk Liberallie they went to the cross and appryssed the said goods at most shamefull under rates Lykas the other appryssers Imployed by Charles Dobie did the like and so shamefull was the under valueing of the saids goods even below a fourth or fifth of their worth That the people about cryed out and some offered to give four or five times more for them and the treuth is the forsaid appryssers were not sworne befor the baillie of the burgh as the cusstome of poynding in the burgh of Pearth is But were So malicious in ther valueing that they answered the people who cryed out upon them that the value was high eneugh for a whiggs goods, And as these under values Dobbie Caried away the goods besides what hade been otherwayes Imbazled And the pursuers sister came at her oun hand and gott what Patrick Hay caused appryss for his nyntie four punds of which she made him satisfactione, And the goods to this day extant in her hand are worth six hundred punds By which malicious and oppressive attempt Designed and acted against the pursuer when he was absent and likwayes secured by Patrick Hayes promise of forbearance, The pursuer was in effect spulzied and ruined haveing hade nothing left him of a weell furnished Chope with all sorts of Ware for the Countrey and of a weell plenished house no not so much as a spoon or Blanket, But is therby damnadged to the value at least of six thousand punds scots and brock in his Credit and reduced to great extreamity, off all which the forsaids persones or ane or other of them being guiltie or airt and part The pursuer ought to have his Jus Jurandum in Litem and restitution made to him accordingly And Farder they ought to be punished in their persones and goods to the example and terror of others to comitt the like in time comeing And Anent the Charge given to the saids defenders To have Compeired before the Saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint and to have heard and seen such order and course taken theranent as the saids Lords should think fitt, as the said Lybell executiones and indorsationes therof at more leanth bears. Which letters or lybell being upon the sixth day of June Jaj vjc nyntie thrie years called in presence of the saids Lords of their majesties privy Councill And the said James Dewar pursuer Compeiring Personally with Sir James Ogilvie his Advocat and some of the defenders Compeiring also personally with Sir David Thoires the advocat and others of them being absent and at the desyre of the pursuers advocat not called The saids letters or Lybell and answers given in therto for the defenders being read in presence of the saids Lords and both parties advocats fully heard The Saids Lords of ther Majesties privy Councill Admitted the Lybell to the pursuers probatione and appointed a Committie of their oun number for examining of the witnesses and Considering the writtes And the pursuer haveing adduced diverse and sundrie famous witnesses before the said Committie for proveing the points and articles of the said Lybell who being all solemnly sworne and examined upon ther great oathes deponed and Declared as ther Oathes and depositiones extant in process bears The Saids Lords of their Majesties privy Councill haveing upon the twentie Eight of June Jaj vjc nyntie thrie years, Considered the depositiones with the executiones of poynding They Fand that the goods poynded at Provest Hay and Charles Dobies instances are not Lawfullie poynded And appoints the defenders to Restore the Same to the pursuer or the pryces and value therof as the same shall be Liquidated by the pursuers oath And appoints him to give his oath therupon And Recommends to the Lords Hatton and Enstruther to take the pursuers oath upon the quantitie and value of the saids goods poynded at either of the saids defenders instance Reserving to the saids to modifie at the advyseing of the said oath And the said James Dewar persewar haveing Compeired in presence of the saids Lords appointed to take his oath as above and being Solemnly sworne Interrogat and examined, Upon the quantities and value of the goods houshold plenishing and merchand wair alleged spulzied and Caried away be the said Provest Hay and Charles Dobie Depones that he cannot be positive upon the particular quantities of each kynd of goods plenishing or merchand wair caried away be the said Provest Hay and Charles Dobie But depones that the value of the goods plenishing and wair Caried a way was worth the soume of nyne Thousand merks, But cannot destinguish betwixt what was taken away be Provest Hay and what be Charles Dobie, And Depones what he has said is treuth as he shall answer to god as the oath and deposition of the said James Dewar pursuer duely subscribed by him extant in process bears. Therafter the said Patrick Hay and Charles Dobie Gave in a Supplicatione to the saids Lords of privy Councill Shewing That quher in the actione at the instance of James Dewar against Provoest Hay Charles Dobie and others for the alledged Spulzieing the said James Dewars house and Chope, Their Lordships haveing Found that the goods poynded at the petitioners instance were not Lawfullie poynded and appointed the petitioners to refound the Samen or the pryces, as the samen shall be Liquidat be the pursuers oath, And Ordained him to give his oath upon the quantitie and value of the goods poynded Reserving to the saids Lords to modifie at adviseing And accordingly the pursuer haveing given his oath that he cannot be positive upon the particular quantities of each kynd of goods plenishing or merchand ware caried away be the petitioners, Bot that the value of the goods are worth nyne thousand merks Butt cannot Distinguish betwixt what was taken away be Provest Hay and Charles Dobie As to which the petitioners humbly represents That their defence in the said action being that the goods were Lawfullie poynded as appeared by the executiones of poynding, And all that was alleaged to take off that defence was that the goods were not Inventared in the Chope but were Imbazled before they were inventared at the Cross Which can be no ground to take off the defence that they were Lawfullie poynded, nor can the petitioners be Lyable for a Spulzie nor oblidged to restore the goods or the value therof, And far less that the persuer should have his Juramentum in litem for these reasones primo that the executiones of poynding Is opponed bearing all the goods poynded and value therof as they were apprysed be sworne appryssers Secundo albeit the Imbazlement was particularly Lybelled be the pursuer yet ther is no such thing proven Tertio Provest Hay could not be Lyable, Because the goods poynded be him were instantly delivered back to the pursuers Sister in his name who Compeired and Craved back the goods upon her giveing bond to Provest Hay for his debt as appears by the executiones and the pursuers sisters bond lying in proces, And it is ane incontraverted principall in law, That albeit ther were any informalitie in a poynding yet the instant delivery back of the goods takes if of And Seing the interloquitor is alternative either to restore the goods poynded or the pryces seing the goods poynded at Provest Hayes instance were instantly delivered back to the persewers Sister and is still ready to be delivered back be her to him, And Seing Charles Dobie is Content to deliver back what goods was poynded at his instance the defenders cannot be farder Lyable Quarto the pretended ground Lybelled that Charles Dobie should be Lyable is that the goods were caried to his bouse before they were Caried to the Cross, Wheras ther is no such thing proven that the goods were Caried to his house But it appears that the messenger never left the goods till they were caried to the cross and apprysed Quinto if ther hade been any Informalitie in the poynding however that might have been ground of Complaint against the messenger and toune officer that poynded, yet that can never be a ground of ane actione of spulzie or Ryot against the petitioners who were the Imployers seing the messenger and executer of poynding are only Lyable incase they wrongeously poynd and not the Imployers seing noxa Caput sequitur, And if it were Otherwayes, It might be in the power of a messenger either by negligence or designe to ruine any persone that Imployes them by Committing some informalitie or Irregularity in the poinding Sexto the said action being a spulzie aryssing for alledged Illegall poynding, This being a Civill action ought properly to be determined be the Lords of session as is clear by the 34th act parliament 4th James 5th By which it is provyded That all such casses ought first civilly to be Determined, And the true reason of it is Becaus of the many defences that are Competent to take off the spulzie, such as that the goods were Lawfullie poynded as in this case, or that the goods might have been intromitted with by a Dipositione, and as in such a case if a nulitie were objected against the diposition it were only proper to be Determined by the Lords of session, and be that same reason, This case Ought to be remitt to the Judge ordinary which is clear to have been the Designe of the act of parliament, That all objectiones wither against Legall or voluntar rights by which any party intromitts with goods as being properly appoint of right should first be determined be the Lords of session. Otherwayes all spulzies in the first instance should be brought before the privy Councill, which was never the practise and seems to be expressly contrare to the forsaid act of parliament Septimo by the interloquitor The persuar was ordained to depone upon the quantitie alse weell as the value of the goods poynded, And he Declares in his oath that he cannot depon upon the particular quantities of the goods, So that he has not deponed in the termes of the interloquitor nor was it possible for him to depone upon the value unles he deponed first upon the quantitie, For the value most necessarly aryss from the species and quantities of the goods, so that as the oath does not answer the interloquitor so it Implyes a doun right contradictione For first he depones he knowes not the quantitie and yet therafter he Declares that the value was nyn Thousand merks, Which was Imposible for him to doe; unles he hade knowen the quantitie and species of the goods Octavo the Contradiction and prevaricatione of his oath is farder evinced from this, That he sayes in his oath he cannot destinguish betwixt what was taken away be Charles Dobie and what wes taken away be Provest Hay And yet the Lybell bears expressly the goods caried be Provest Hay were only worth six hundred pund, and that he so farr knew the species of these goods that he so farr knew the species of these goods that he acknowledged in his Lybell that his sister got these goods, which Patrick Hay hade caused appryss, and which were still in her Custody, so that it is evident by the Lybell that he both knew the species of the goods and the value therof that was poynded at the instance of Provest Hay nono It being acknowledged by the Lybell that the goods were never in Provest Hayes Custody, Bot was allwayes retained by the pursuers sister and it being likwayes acknowledged that these goods were only worth Six Hundred pund, How is it possible that he should be Lyable for a Spulzie or how can the pursuer clame any more to be restored be Provest Hay then the goods that he values in his Lybell to six hundred pund quhich are restored allready Seing they are and were allwayes in his sisters Custody, and never in the Provests possession, nor so much as in the possession of the messengers that poynded the samen, They being instantly when they were at the mercat cross delivered to his sister Decimo as it is evident the persewar has grossly prevaricat in his oath So he is most highly extravagant as to the pretended value of the goods which he Sayes is worth nyn thousand merks which is evinced from these particulars first that it is against sense to think that Charles Dobie would poind goods to the value of Eight thousand one hundred merks as the pursuer pretends and that only for one hundred and sixtie pund Scots Secundo It is offered to be proven that the pursuer was comonly repute to be a brocken man severall years before the poynding Tertio That even when he was inteiro his Chope was never esteemed to be worth above one thousand merks he haveing keept only a Crymrie Chop that sold prines and needles threed Buttones and other such small wair Quarto That their being severall Captiones against him before the poynding and he fearing that the Creditors might poynd Its offered to be proven that severall nights before and the time of the poynding his wyfe and others with her (the pursuer being fled upon the accusations of the Captiones) Did Carrie away severall goods out of his house and Chope Which is supposed to be the best of his goods Quinto all the time when the pursuer was giveing his oath the defenders Craved that the persewar might produce his bills of parcells or buying book Which all merchants which hade any trade Especially of any Considerable value must necessarly have Otherwayes It were Imposible for them to know at what rate to sell ther goods And he Declared he hade neither any bills of parcells or buying book nor no accompt that would clear the value of the goods as is knowen to the Lords examinators, and this if it were no more is suficient to redargue the oath It being most certaine that all merchants that hes a trade of any value must have bills of parcells and keep a buying book, But seing he Declares he has no such bills or books It is a clear Demonstratione he was but a pedling merchant at the best seing pedlars and Chopmen are the only persones that keeps no such books who sells small and inconsiderable wair The Saids Lords of privy Councill haveing Considered the above bill they by ther interloquitor of the fourth of August Jaj vjc nyntie thrie Gave warrand to their Clerk to give out letters at the petitioners instance for citeing the said James Dewar to appear before their Lordships upon ane certaine day now bygone with Certificatione etc And admitted the particulars on the bill acknowledged against the extravagancy of James Dewars oath as to the value to the petitioners probatione and Granted warrand for citeing of witnesses Conforme Wherunto the said Patrick Hay and Charles Dobie haveing taken out letters in the termes of the above interloquitor Did cite the said James Dewar be vertue therof And the saids letter being upon the seventh day of september Jaj vjc nyntie thrie years Called in presence of the saids Lords of his majesties privy Councill in presence of the saids Lords of his majesties privy Councill And the pursuers Compeiring be Sir Patrick Home advocat this procurator and the defender Compeiring personally with Robert Park his advocat The Saids Lords haveing Considered this lybell with the answers made therto for the defender with the defender his oath taken in the proces at his instance against the pursuers And the interloquitor of Councill pronunced in that proces upon the twentie Eight day of June last They notwithstanding of the said interloquitor Ordaine the saids Provest Hay and Charles Dobie yet to restore and Deliver back to the said James Dewar the saids good poynded at their instance Which Conforme to the said interloquitor They Find not to have been Lawfullie poynded, And that betwixt and the third day of October nixt And Ordaines the said James Dewar or to receive the same, And appoints the said James to gave his oath upon the value of the goods which shall not be restored and delivered back to him as said is, Lykas the saids Lords haveing Considered another petitione given in to them be the said Patrick Hay and Charles Dobie with a Counter petitione given in be the said James Dewar They be ther deliverance of the nynth of november Jaj vjc nyntie thrie Remitted to a Committie of their oun number to take the oath and deposition of the said James Dewar in the termes as is appointed by the abovewritten interloquitor of the seventh of september Jaj vjc nyntie thrie In Obedience to and prosecutione of which two interloquitors The said James Dewar Compeired in presence of the said Committie and being Solemnly Sworne Interogate and examined upon the quantitie and value of the goods which the Councill have found not have been lawfullie poynded and quhich have not been restored Conforme to the interloquitor of Councill of the seventh of september last and nynth of november instant as alsoe anent the houshold plenishing and other merchand wair alledged to have been caried away be Provest Hay and Charles Dobie not contained in the executiones of poynding of the quhich executiones the deponent has hade inspection since saturday last, Depones that the value of the goods plenishing and merchand wair as above specified By and attour the value of the particular goods restored does extend to the soume of seven Thousand and Eight hundred merks, And that the deponant values the goods restored to twelue hundred merks to haveing payed about that pryce for them when he bought them albeit in the executiones of poynding they be valued only to two hundreth and fiftie or sixtie punds Scots, And being farder interogate what were the particular goods and merchantwair caried away Depones he cannot Depone upon the particular species or individualls of the plenishing or merchant wair, And Depones what he has said is trueth as he shall answer to god as the oath and Deposition of the said James Dewar extant in proces bears, And the saids Lords or privy Councill haveing this day Considered the wholl affair and particularly the interloquitor of Councill of the seventh of september and James Dewars oath of the Thretein of november both in the said year Jaj vjc nyntie thrie, They heirby Modifie the soume of Four Thousand merks scots to be payed be the above Patrick Hay and Charles Dobie Conjunctllie and severallie as the value of the goods poynded by him from the said petitioner and that over and above what is acknowledged by his oath to be received back be him, And Decernes and Ordaines the said Patrick Hay and Charles Dobie Conjunctllie and severallie to make payment to the said James Dewar of the said soume heirby modified as said is Deduceing allwayes the summs for which poynding was used with the Current annualrents therof sincesyne out of the first end of the Soume heirby modified and decerned, And ordaines letters of horning on fiftein dayes and others needfull to be direct heirupon in forme as effeirs.
Eodem Die [8 March 1694]. Post meridiem
D1694/3/14
Judicial Proceeding
[James Dewar, merchant in Pearth]
Anent our Soveraigne Lord and Ladies letters intented and pursued before the Lords of their Majesties privy Councill at the instance of James Dewar merchant in Pearth with concourse of Sir James Stewart ther Majesties advocat for their highnes intrest in the matter underwritten a making mention, That quher by the Lawes of this and all other weell governed realmes, The masterfull oppression and Spulzie Especiallie when the same are done and acted under Colour of Law, and to the abuse therof are Crymes of a high nature and severly punishable yet nevertheless It is of veritie that Patrick Hay merchant in Pearth upon the pretence of a decreet recovered against the pursuer at his instance before the baillies of Pearth for the sum of nyntie four punds scots and Jannat Dobie Spouse to Charles Dobie baxter ther upon the pretence of another Decreet at her instance against the said pursuer before the Lords of Councill and session for the sum of ane Hundreth and sixtein punds money forsaid The said Patrick Hay and Charles Dobie came upon the twentie one or ane or other of the dayes of the moneth of January last and under pretence of poynding seazed or caused seaze upon the persuers wholl Chop and goods therin, The same goods being of all sorts as is usuall in Chops of the Countrey and of value no less then five thousand punds scots and also upon his houshold plenishing and caried all away without ever causeing inventar the goods or makeing any valuatione therof upon the place as the custome of poynding within the said burgh Requyres Bot on the Contrary they and either of them refused the offer made by the pursuers freinds (he being at the time absent in Edinburgh) To have the goods first seen and inventared and not to have taken them a way as goods abandoned to be Imbazled at every ones pleasure and therfore David Mckay, Alexander Donaldson, Alexander Cuttie, and David Cachran toune officers Imployed in the said poynding and who at their oun hand hade at the beginning taken the keyes of the Chop out of the window wher it Lay and did open the Chopes doors therwith, Which they ought not to have done, without a speciall warrand as also David Moncreif messenger and Androw Grant and Margaret Frissell servants to the said Charles Dobie Caried away by themselves and others the haill forsaids goods before they caried them to the marcat cross, The said Charles Dobie Caried and Caused Carie them to his oun house Lykeas in this disorder many of the saids goods were Caried away and Imbazled by the Countrey people whom they sufered to take them away at ther pleasure, It being then the marcat day And the said Patrick Hay and Charles Dobie and the messenger and officers haveing gott persones to be appryssers viz Henry Miller bookseller William Sharp Flesher, John Scot, John Watson, Henry Reid wright in Pearth and James Scot Homerman William Craigle Cuttler, George Anderson and John Naper wrights Androw Home Fish mynger John Murray Bell man Alexander Paterson Tinclar and Willim Stewert Weaver all in the said toune of Pearth persones nowayes fitt to sett a prize upon such merchand wair as some of themselves Declared And declyned untill threatned and Compelled by David Monteith baillie of the said burgh of Pearth, Patrick Hay did cary his apprysers with the toune officers first to the house of James Mckenzie brewar and after they hade Drunk Liberallie they went to the cross and appryssed the said goods at most shamefull under rates Lykas the other appryssers Imployed by Charles Dobie did the like and so shamefull was the under valueing of the saids goods even below a fourth or fifth of their worth That the people about cryed out and some offered to give four or five times more for them and the treuth is the forsaid appryssers were not sworne befor the baillie of the burgh as the cusstome of poynding in the burgh of Pearth is But were So malicious in ther valueing that they answered the people who cryed out upon them that the value was high eneugh for a whiggs goods, And as these under values Dobbie Caried away the goods besides what hade been otherwayes Imbazled And the pursuers sister came at her oun hand and gott what Patrick Hay caused appryss for his nyntie four punds of which she made him satisfactione, And the goods to this day extant in her hand are worth six hundred punds By which malicious and oppressive attempt Designed and acted against the pursuer when he was absent and likwayes secured by Patrick Hayes promise of forbearance, The pursuer was in effect spulzied and ruined haveing hade nothing left him of a weell furnished Chope with all sorts of Ware for the Countrey and of a weell plenished house no not so much as a spoon or Blanket, But is therby damnadged to the value at least of six thousand punds scots and brock in his Credit and reduced to great extreamity, off all which the forsaids persones or ane or other of them being guiltie or airt and part The pursuer ought to have his Jus Jurandum in Litem and restitution made to him accordingly And Farder they ought to be punished in their persones and goods to the example and terror of others to comitt the like in time comeing And Anent the Charge given to the saids defenders To have Compeired before the Saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint and to have heard and seen such order and course taken theranent as the saids Lords should think fitt, as the said Lybell executiones and indorsationes therof at more leanth bears. Which letters or lybell being upon the sixth day of June Jaj vjc nyntie thrie years called in presence of the saids Lords of their majesties privy Councill And the said James Dewar pursuer Compeiring Personally with Sir James Ogilvie his Advocat and some of the defenders Compeiring also personally with Sir David Thoires the advocat and others of them being absent and at the desyre of the pursuers advocat not called The saids letters or Lybell and answers given in therto for the defenders being read in presence of the saids Lords and both parties advocats fully heard The Saids Lords of ther Majesties privy Councill Admitted the Lybell to the pursuers probatione and appointed a Committie of their oun number for examining of the witnesses and Considering the writtes And the pursuer haveing adduced diverse and sundrie famous witnesses before the said Committie for proveing the points and articles of the said Lybell who being all solemnly sworne and examined upon ther great oathes deponed and Declared as ther Oathes and depositiones extant in process bears The Saids Lords of their Majesties privy Councill haveing upon the twentie Eight of June Jaj vjc nyntie thrie years, Considered the depositiones with the executiones of poynding They Fand that the goods poynded at Provest Hay and Charles Dobies instances are not Lawfullie poynded And appoints the defenders to Restore the Same to the pursuer or the pryces and value therof as the same shall be Liquidated by the pursuers oath And appoints him to give his oath therupon And Recommends to the Lords Hatton and Enstruther to take the pursuers oath upon the quantitie and value of the saids goods poynded at either of the saids defenders instance Reserving to the saids to modifie at the advyseing of the said oath And the said James Dewar persewar haveing Compeired in presence of the saids Lords appointed to take his oath as above and being Solemnly sworne Interrogat and examined, Upon the quantities and value of the goods houshold plenishing and merchand wair alleged spulzied and Caried away be the said Provest Hay and Charles Dobie Depones that he cannot be positive upon the particular quantities of each kynd of goods plenishing or merchand wair caried away be the said Provest Hay and Charles Dobie But depones that the value of the goods plenishing and wair Caried a way was worth the soume of nyne Thousand merks, But cannot destinguish betwixt what was taken away be Provest Hay and what be Charles Dobie, And Depones what he has said is treuth as he shall answer to god as the oath and deposition of the said James Dewar pursuer duely subscribed by him extant in process bears. Therafter the said Patrick Hay and Charles Dobie Gave in a Supplicatione to the saids Lords of privy Councill Shewing That quher in the actione at the instance of James Dewar against Provoest Hay Charles Dobie and others for the alledged Spulzieing the said James Dewars house and Chope, Their Lordships haveing Found that the goods poynded at the petitioners instance were not Lawfullie poynded and appointed the petitioners to refound the Samen or the pryces, as the samen shall be Liquidat be the pursuers oath, And Ordained him to give his oath upon the quantitie and value of the goods poynded Reserving to the saids Lords to modifie at adviseing And accordingly the pursuer haveing given his oath that he cannot be positive upon the particular quantities of each kynd of goods plenishing or merchand ware caried away be the petitioners, Bot that the value of the goods are worth nyne thousand merks Butt cannot Distinguish betwixt what was taken away be Provest Hay and Charles Dobie As to which the petitioners humbly represents That their defence in the said action being that the goods were Lawfullie poynded as appeared by the executiones of poynding, And all that was alleaged to take off that defence was that the goods were not Inventared in the Chope but were Imbazled before they were inventared at the Cross Which can be no ground to take off the defence that they were Lawfullie poynded, nor can the petitioners be Lyable for a Spulzie nor oblidged to restore the goods or the value therof, And far less that the persuer should have his Juramentum in litem for these reasones primo that the executiones of poynding Is opponed bearing all the goods poynded and value therof as they were apprysed be sworne appryssers Secundo albeit the Imbazlement was particularly Lybelled be the pursuer yet ther is no such thing proven Tertio Provest Hay could not be Lyable, Because the goods poynded be him were instantly delivered back to the pursuers Sister in his name who Compeired and Craved back the goods upon her giveing bond to Provest Hay for his debt as appears by the executiones and the pursuers sisters bond lying in proces, And it is ane incontraverted principall in law, That albeit ther were any informalitie in a poynding yet the instant delivery back of the goods takes if of And Seing the interloquitor is alternative either to restore the goods poynded or the pryces seing the goods poynded at Provest Hayes instance were instantly delivered back to the persewers Sister and is still ready to be delivered back be her to him, And Seing Charles Dobie is Content to deliver back what goods was poynded at his instance the defenders cannot be farder Lyable Quarto the pretended ground Lybelled that Charles Dobie should be Lyable is that the goods were caried to his bouse before they were Caried to the Cross, Wheras ther is no such thing proven that the goods were Caried to his house But it appears that the messenger never left the goods till they were caried to the cross and apprysed Quinto if ther hade been any Informalitie in the poynding however that might have been ground of Complaint against the messenger and toune officer that poynded, yet that can never be a ground of ane actione of spulzie or Ryot against the petitioners who were the Imployers seing the messenger and executer of poynding are only Lyable incase they wrongeously poynd and not the Imployers seing noxa Caput sequitur, And if it were Otherwayes, It might be in the power of a messenger either by negligence or designe to ruine any persone that Imployes them by Committing some informalitie or Irregularity in the poinding Sexto the said action being a spulzie aryssing for alledged Illegall poynding, This being a Civill action ought properly to be determined be the Lords of session as is clear by the 34th act parliament 4th James 5th By which it is provyded That all such casses ought first civilly to be Determined, And the true reason of it is Becaus of the many defences that are Competent to take off the spulzie, such as that the goods were Lawfullie poynded as in this case, or that the goods might have been intromitted with by a Dipositione, and as in such a case if a nulitie were objected against the diposition it were only proper to be Determined by the Lords of session, and be that same reason, This case Ought to be remitt to the Judge ordinary which is clear to have been the Designe of the act of parliament, That all objectiones wither against Legall or voluntar rights by which any party intromitts with goods as being properly appoint of right should first be determined be the Lords of session. Otherwayes all spulzies in the first instance should be brought before the privy Councill, which was never the practise and seems to be expressly contrare to the forsaid act of parliament Septimo by the interloquitor The persuar was ordained to depone upon the quantitie alse weell as the value of the goods poynded, And he Declares in his oath that he cannot depon upon the particular quantities of the goods, So that he has not deponed in the termes of the interloquitor nor was it possible for him to depone upon the value unles he deponed first upon the quantitie, For the value most necessarly aryss from the species and quantities of the goods, so that as the oath does not answer the interloquitor so it Implyes a doun right contradictione For first he depones he knowes not the quantitie and yet therafter he Declares that the value was nyn Thousand merks, Which was Imposible for him to doe; unles he hade knowen the quantitie and species of the goods Octavo the Contradiction and prevaricatione of his oath is farder evinced from this, That he sayes in his oath he cannot destinguish betwixt what was taken away be Charles Dobie and what wes taken away be Provest Hay And yet the Lybell bears expressly the goods caried be Provest Hay were only worth six hundred pund, and that he so farr knew the species of these goods that he so farr knew the species of these goods that he acknowledged in his Lybell that his sister got these goods, which Patrick Hay hade caused appryss, and which were still in her Custody, so that it is evident by the Lybell that he both knew the species of the goods and the value therof that was poynded at the instance of Provest Hay nono It being acknowledged by the Lybell that the goods were never in Provest Hayes Custody, Bot was allwayes retained by the pursuers sister and it being likwayes acknowledged that these goods were only worth Six Hundred pund, How is it possible that he should be Lyable for a Spulzie or how can the pursuer clame any more to be restored be Provest Hay then the goods that he values in his Lybell to six hundred pund quhich are restored allready Seing they are and were allwayes in his sisters Custody, and never in the Provests possession, nor so much as in the possession of the messengers that poynded the samen, They being instantly when they were at the mercat cross delivered to his sister Decimo as it is evident the persewar has grossly prevaricat in his oath So he is most highly extravagant as to the pretended value of the goods which he Sayes is worth nyn thousand merks which is evinced from these particulars first that it is against sense to think that Charles Dobie would poind goods to the value of Eight thousand one hundred merks as the pursuer pretends and that only for one hundred and sixtie pund Scots Secundo It is offered to be proven that the pursuer was comonly repute to be a brocken man severall years before the poynding Tertio That even when he was inteiro his Chope was never esteemed to be worth above one thousand merks he haveing keept only a Crymrie Chop that sold prines and needles threed Buttones and other such small wair Quarto That their being severall Captiones against him before the poynding and he fearing that the Creditors might poynd Its offered to be proven that severall nights before and the time of the poynding his wyfe and others with her (the pursuer being fled upon the accusations of the Captiones) Did Carrie away severall goods out of his house and Chope Which is supposed to be the best of his goods Quinto all the time when the pursuer was giveing his oath the defenders Craved that the persewar might produce his bills of parcells or buying book Which all merchants which hade any trade Especially of any Considerable value must necessarly have Otherwayes It were Imposible for them to know at what rate to sell ther goods And he Declared he hade neither any bills of parcells or buying book nor no accompt that would clear the value of the goods as is knowen to the Lords examinators, and this if it were no more is suficient to redargue the oath It being most certaine that all merchants that hes a trade of any value must have bills of parcells and keep a buying book, But seing he Declares he has no such bills or books It is a clear Demonstratione he was but a pedling merchant at the best seing pedlars and Chopmen are the only persones that keeps no such books who sells small and inconsiderable wair The Saids Lords of privy Councill haveing Considered the above bill they by ther interloquitor of the fourth of August Jaj vjc nyntie thrie Gave warrand to their Clerk to give out letters at the petitioners instance for citeing the said James Dewar to appear before their Lordships upon ane certaine day now bygone with Certificatione etc And admitted the particulars on the bill acknowledged against the extravagancy of James Dewars oath as to the value to the petitioners probatione and Granted warrand for citeing of witnesses Conforme Wherunto the said Patrick Hay and Charles Dobie haveing taken out letters in the termes of the above interloquitor Did cite the said James Dewar be vertue therof And the saids letter being upon the seventh day of september Jaj vjc nyntie thrie years Called in presence of the saids Lords of his majesties privy Councill in presence of the saids Lords of his majesties privy Councill And the pursuers Compeiring be Sir Patrick Home advocat this procurator and the defender Compeiring personally with Robert Park his advocat The Saids Lords haveing Considered this lybell with the answers made therto for the defender with the defender his oath taken in the proces at his instance against the pursuers And the interloquitor of Councill pronunced in that proces upon the twentie Eight day of June last They notwithstanding of the said interloquitor Ordaine the saids Provest Hay and Charles Dobie yet to restore and Deliver back to the said James Dewar the saids good poynded at their instance Which Conforme to the said interloquitor They Find not to have been Lawfullie poynded, And that betwixt and the third day of October nixt And Ordaines the said James Dewar or to receive the same, And appoints the said James to gave his oath upon the value of the goods which shall not be restored and delivered back to him as said is, Lykas the saids Lords haveing Considered another petitione given in to them be the said Patrick Hay and Charles Dobie with a Counter petitione given in be the said James Dewar They be ther deliverance of the nynth of november Jaj vjc nyntie thrie Remitted to a Committie of their oun number to take the oath and deposition of the said James Dewar in the termes as is appointed by the abovewritten interloquitor of the seventh of september Jaj vjc nyntie thrie In Obedience to and prosecutione of which two interloquitors The said James Dewar Compeired in presence of the said Committie and being Solemnly Sworne Interogate and examined upon the quantitie and value of the goods which the Councill have found not have been lawfullie poynded and quhich have not been restored Conforme to the interloquitor of Councill of the seventh of september last and nynth of november instant as alsoe anent the houshold plenishing and other merchand wair alledged to have been caried away be Provest Hay and Charles Dobie not contained in the executiones of poynding of the quhich executiones the deponent has hade inspection since saturday last, Depones that the value of the goods plenishing and merchand wair as above specified By and attour the value of the particular goods restored does extend to the soume of seven Thousand and Eight hundred merks, And that the deponant values the goods restored to twelue hundred merks to haveing payed about that pryce for them when he bought them albeit in the executiones of poynding they be valued only to two hundreth and fiftie or sixtie punds Scots, And being farder interogate what were the particular goods and merchantwair caried away Depones he cannot Depone upon the particular species or individualls of the plenishing or merchant wair, And Depones what he has said is trueth as he shall answer to god as the oath and Deposition of the said James Dewar extant in proces bears, And the saids Lords or privy Councill haveing this day Considered the wholl affair and particularly the interloquitor of Councill of the seventh of september and James Dewars oath of the Thretein of november both in the said year Jaj vjc nyntie thrie, They heirby Modifie the soume of Four Thousand merks scots to be payed be the above Patrick Hay and Charles Dobie Conjunctllie and severallie as the value of the goods poynded by him from the said petitioner and that over and above what is acknowledged by his oath to be received back be him, And Decernes and Ordaines the said Patrick Hay and Charles Dobie Conjunctllie and severallie to make payment to the said James Dewar of the said soume heirby modified as said is Deduceing allwayes the summs for which poynding was used with the Current annualrents therof sincesyne out of the first end of the Soume heirby modified and decerned, And ordaines letters of horning on fiftein dayes and others needfull to be direct heirupon in forme as effeirs.
