It was no excuse to a son committing a spuilzie, that he had the orders of his father.
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Mr. Robert Glen pursued Setoun, son to umquhile John Setoun of Pittredie, for -wrongous intromission with the teind-sheaves of the said umquhile John's lands, pertaining in tack to the said Mr. Robert in anno 1597, 1598, &c. It was alleged by the defender, That no action should be given against him, because if any meddling he had with these corns, it was as a servant to his father, he being then a minor, of 15 years of age, in domo et potestate patris, and at his command. It was replied, That the pursuer having served inhibition, this defender, and all others, were in mala fide to have meddled with any of these corns unteinded. The matter being reasoned amongst the Lords, some alleged, for the defender, that a man's bairns and servants being commanded, in harvest, to lead the master's corns, sown by himself, albeit they be both stock and teind, to his barn-yard, without any farther intromission to their own behoof, they were in bona fide, and habebant parendi necessitatem, and could not be in danger of law as if they had meddled with any other man's corns, growing upon any other ground; and if it were found otherwise, household servants and bairns might be wraiked and snared in great inconveniencies. It was answered, That the inhibition put omnes mortales in mala fide, and that wrong had no warrant; so that whoever was at a spuilzie, whether son or servant, might be pursued super proprio facto; and if it were found otherwise, it would give great boldness to servants and men's bairns to do wrong. The Lords repelled the exception, and declared they would take good attendance to the probation, and reserve the modification to themselves.
