A judicial declaration, though extracted from the books of adjournal, found no sufficient probation, before a civil judge ad civilem effectum, if the party had protested; otherwise if he had not protested.
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Gif ony man, accusit in the justice air for spuilzie, reif, thift, or laying waist of ony landis, takis him to his remissioun thairfoir, and then instantlie denyis the space, of the with-halding of the gudis, or laying waist of the landis, and quantitie of the profitis thairof, protestand solemnitlie, that his confessioun hurt him not befoir the civil Judge anent the space of the zeiris, and quantitie of the proffitis, without the samin be sufficientlie provin befoir him, as accordis of the law; he, nor his sovertie, gif ony was fund be him befoir the Justice, sould not be compellit befoir the civil Judge to pay the proffitis of the said gudis or landis, except the samin be provin be witnesses, writ or other-wayis; for in this cais the confessioun contenit in the act of adjournal is not sufficient probatioun; because the samin was maid be the persoun accusit, the time of his accusatioun, for just feir of his life, and dreadour that micht fall in ane constant man. For it is to wit, that the confessioun of ony partie in the justice air takand him to his componitur, for ony spuilzie or uther crime, preivis befoir the civil judge, the wrang, crime, nor profitis, nor time of the alledgit spuilzie, gif he in the mene time protestis, that the samin confessioun sall not be hurtful nor prejudicial to him: Bot gif na protestatioun be maid be him, the act of adjournal of his confessioun, contenand the proffitis, zeiris, and times of the spuilzie, or uther crimes, is just and sufficient probatioun againis him, 13th Julii 1541, or his sovertie, gif ony be fundin be him, for satisfaction of partie; and misteris na farder probatioun be witnessis, or utherwayis, tuiching the doing and committing of the said crime; and the prices, and avail of the gudis spuilziet, audit and sould be referrit to the aith of the persewar.
Fol. Dic. v. 2. p. 350. Balfour, (Of Actis of Adjournal.) No 7. p: 498.*** Sinclair reports this case:
In the cause of John, Lord Hay of Yester, it was decreeted, that a confession of party, made in the criminal court, taking him to the componitors for all the crimes imputed to him, proves not in causa civili the wrong, nor the profits of the alleged spuilzie, when the party in the said criminal action protests for the same, and so because the years of the alleged oppression and profits, confessed in the acts of adjournal by his party adversary, was not otherwise proved before the Sheriff. The said Lord produced an enrolment of Court, and was there said, had not been the said protestation, the said act containing in special the profits of the years had been just probation.
