Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. II.
What Right go against Heirs.
Monro v. Wishart
1582.
January. Case No. No 16.
Although the heir of the committer of spuilzie cannot be pursued criminally, he may be convened for restitution.
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Andrew Monro in Newmoir, as cessioner and assignee, pursued a pupil called Wishart, for a spuilzie of certain goods, of cattle and corns, committed by the father of the said pupil.—It was answered to the summons, That the said pupil being but of the age of eight or nine years, could not be convened for the trespass or spuilzie committed by his father, except according to the common law, his father had been first pursued, and litiscontestation made into the cause, or that it had been libelled quatenus ad illum pertinet.—To this and to the law it was answered, That the said law ought to be understood in criminali contentione; and in the. practick of Scotland and all civil nations, actions are transferred in hæredes et universales successores active et passive. The Lords found, by interlocutor, the said pupil and infant might be convened for the spuiliation of violence committed by his father; and thereafter they reserved the violent profits to their own modification.
