Found that a depending reduction of a decree cannot stop execution thereupon.
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Gif ane decrete of ejectioun or spuilzie be gevin aganis ony persoun, he may call and persew for reductioun thairof, albeit he has not fulfillit nor obey-it the samin, nor zit maid restitutioun, conform thairto, of the gudis and geir spuilzeit be him, to the obtenar of the decrete; because the commoun rule, spoliatus ante omnia est restituendus, stoppis him not to seik reductioun of the said decrete, and has onlie place, quando agitur super proprietate rei spoliatæ vel de alia re, agendo principaliter; et non quando agitur per viam reductionis, ad retractandam sententiam, super spolio contra aliquem latam: And, zit nevertheless, the intenting or dependence of the said reductioun sould not stop the obtenar of the said decrete, to put the samin to farder executioun, duing the time of the said dependence.
Fol. Dic. v. 2. p. 326. Balfour, (Of Spuilzie and Ejectioun) No 41. p. 475.*** Sinclair reports this case:
1541. March 9.
In the cause of John Haliburton against Helen Rutherfurd, the Lords, by interlocutor, decerned that exception, quod spoliatus ante omnia est restituendus, proponed by Mr Hew Rig, procurator for the said Helen. Alleged, That the said Helen had not yet gotten restitution of the spuilzie committed against her by the said John's father, as the decreet of the Lords for reduction of the quhilk the said John's now intented action, bore therefore unto the time, that she was plene restituta ad omnia contenta in dicto decreto; that the said John should not be admitted nor heard ad agendum contra eandem Helenam super reductionem ejusdem decreti. The Lords repelled the said exception and decerned.
1541. March 22.—In John Haliburton's cause against John Rutherfurd, for production of a decreet of spuilzie, obtained by her against the said John's father ut recordatur, because the time of the alleged spuilzie, et continuo multisannis ante, that ipse reus was in possession of the same lands as she alleged her spuilzied of, as a part and pertinent of his mailing of Murehouse ut memini; and that at the time of the alleged spuilzie she put her plough therein, he being then in possession, and how soon that he got wot thereof, he came and put her furth again incontinenter; and so did no wrong therein, for he defended but his own possession, quhilk was lawful to him, and therefore, in his summons of reduction of the said decreet of spuilzie, given contra suum predecessorem citatum and non comparentem, he asked it to be reduced. The Lords decerned the said exception relevant, because this is the second instance, in qua non allegata allegare non producta producere licebat; and also because the same reason would have been admitted in prima instanta, and stopped the said decreet giving, and so ought to be reduced.
1542. May 12;—In the cause of John Haliburton against Dominam Rutherfurd, penes reductionem decreti cujusdam spoliationis per dominos consilii lati pro dicta dominia contra eundem, the Lords admitted the Abbot of Melrose' tenants to prove the said John's possession of a piece land that the said Lady alleged her spuilzied of by him, as part and pertinents of the lands of M. pertaining to the said John in mailing, holden of the said Abbot and convent of Melrose, because the question was here but upon the said John's possession of the land, and not upon the property thereof, and so the Abbot and convent could not got hurt nor yet profit of this cause, however it go; and so the witnesses were admitted, albeit the other party's procurator, Mr Hew Rig, alleged that they should have been repelled, quia enant tenentes dicti Abbotis, et agebatur super partes, et pertinen. predictarum terrarum ad eundem, ut prædictum est speciatim.
