[1609] Mor 14707
Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. XVII. Wrongous Intromitters. - Delinquents.
Date: -
v.
Ld Cowgrane.
2 December 1609
Case No.No. 104.
Litiscontestation being made against several persons in a spuilzie, and the intromission of all of them being proved, the quantity was found to divide among them, and to have execution against each pro rata; but one of them having died after litiscontestation, the rest were found liable also for his proportion.
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A man in the Lenox pursued Demerstoun of Cowgrane, and certain others, for the spoliation, or way-taking, resetting, withholding, and detaining certain of his nolt. Litiscontestation being made, he proved the away-taking furth of his byre of four nolt by Cowgrane, and that they were taken to the house of another Demerstoun that night, and kept all that night; which the Lords found to be a probation of the spuilzie against the said persons, in respect of their reset. Thereafter, it being alleged, That Cowgrane was dead since the act of litiscontestation, the Lords found, That no sentence could be given against him, because the depositions of the witnesses contained probation against Cowgrane. The Lords found, That the act of litiscontestation made the quantity to divide in equal portions against all the defenders against whom any thing was proved; and therefore they decerned that part which answered to Cowgrane's part, and decerned for the rest against the remanent defenders.
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