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Scottish Court of Session Decisions >>
Dick v Lands. [1630] Mor 6243 (7 December 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1506243-047.html Cite as:
[1630] Mor 6243
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If a messenger come to poind the gear of one that dwells within burgh, the landlord may stop the poinding, if the tenant be owing to him a year's mail of the said tenement, until he be satisfied thereof, but may not stop for any more terms than one year's.
Fol. Dic. v. 1. p. 419. Auchinleck, MS. p. 160.*** Durie reports the same case:
Lands pursuing Dick for deforcement, in staying an officer to poind upon a bond registrate in the books of the Canongate, and conform to the act and warrant directed by the magistrates thereon to the officer, to make open doors; the defender alleged, that this bond registrate in the books of the Canongate, and the foresaid act to make open doors, could not be a warrant to bring the party under so dangerous an action of deforcement, except that, before that act to make open doors, there had been first a precept of poinding directed upon the sentence, and that precept had been executed by the officer, and reported again to the Magistrates, shewing, that he could find no goods strenziable, that thereafter that precept to make open doors, might have been directed; which not being done, that decreet of registration, and the act thereon, to make open doors, could not be a warrant, whereon the officer might poind. And this defender finding that he wanted a warrant, might stay that unorderly poinding, and for doing whereof cannot be convened as a deforcer. The Lords found, no poinding could be executed, while the officer had recovered a warrant to make open doors; item, the Lords found, the landlord of the house might stay the poinding, while he were satisfied of a year's mail, owing for the house, in doing whereof he committed no deforcement; but that he could not stay the poinding upon pretence that any more terms were owing to him; and albeit he at the poinding stayed the same, upon allegeance, that three terms mail were owing to him, yet the Lords found no deforcement thereby, albeit he might not stay the poinding in law, for any more terms mail but a year only, seeing the party poinder offered not security to him, for that year's mail, for which he might have stayed the same; and the offer to pay a term's mail by the poinder was not found enough. See Letters of Open Doors.
