What understood to be a Spuilzie. - What Damages allowed.
- v. Lord Sinclair
Date: 22 July 1580 Case No. No. 6.
To what extent is restitution due?
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There was a clerk in Dysart who pursued my Lord Sinclair for the violent ejecting him forth of a salt pan, which he had in feu and heritage from the said Lord; and he qualified his ejection in this sort, that the said Lord stopped the colliers who were hewing in the heugh coals for panwood to the pan, in so far as he compelled the said colliers to hew to himself, and compelled the leader who led to the clerk's pan to his own behoof, and so, through that unlake of wood, the said pan lay idle, wherefore he concluded in his libel the profits of the salt, albeit he was ejected forth of the winning of his coal. It was excepted against the summons by Lord Sinclair, That the summons was not relevant to infer any such ejection, and that because he qualified only the stoppers of the hewers and leaders of the coal, and compelled them to hew and lead to his own behoof whereby he could not infer the profit of the salt, but, at the most, the coals that were spuilzied, et non potuit agere interdicto, Unde vi, quia versatus rebus mobilibus ablatis aut spoliatis; and the inconvenience appeared to be great, either for stopping of coals or away-taking, to infer ejection and interest to salt, and profits of a salt-pan, in respect he libelled not continual action, but he did the same at such a time; for albeit had stopped him at the time, he might have put in his colliers, and wrought in some other part; and if super unico actu vel diversis actibus, there ought to be such a continual ejection and interest of profits, 1000 or 1200 merks, as was libelled, but only the profits of the thing that was taken away—that was coal. To all this it was answered, That there was no inconveniency, and that it might stand both together to libel ejection, by stopping and compelling of his colliers, and also spoliation of coals, in uno libello; for it might stand, that a man might be ejected forth of his ground and possession, and also his gear taken away off the same ground at the same time; and as to the interest and profits of salt, the same ought to be refunded, because quod tam in actione bonorum raptorum et unde vi, sic restitutio cum omni causa damni; for if the pursuer had not been stopped in hewing and leading of his panwood, he would have carried the same to the pan, and converted the same in making of salt, et de jure tenetur is, vim qui intulit, restituere omnes fructus, quos dejectos percipere potuit, si dejectus non fuisset, et non solum fructuum habendus est usus sed utilitatem, L. 4. § 41. D. De vi et vi armata, et Cod Unde vi L. 4. The Lords by interlocutor found the summons relevant, and admitted the same to probation nevertheless, reserved the modification of the profits to themselves, because immense petebat actor, and that there was some necessary expense to be deducted, as was the expense of winning the coal, and leading and carrying the same, and also the making of the salt.
