It is not sufficient to offer a spuilzied horse again back, after the defender has been summoned, except he be in as good a case as at the time of the spoliation.
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A pursuit being moved against Mr. Duncan Foster and his brother, and accomplices, for spuilzie of a horse, he excepted that he received him incontinenter within four or five days after the alleged spoliation, in as good case as he was taken away, with offer of a merk for the profit of that he had detained him, and because the pursuer refused to receive him, he left him upon the pursuer's ground which he was taken from. It was answered, That the offer was not relevant after so many days detention, unless the restitution had been really offered within 48 hours, because the pursuer was not holden to receive back his horse, after his adversary had violently taken him away, and outridden and bursen him by the space of five or six days, especially seeing this summons was raised within 43 hours after the spuilzie, and divers days before the pretended offer of restitution. The pursuer offered to prove, that incontinenter after that offer, the pursuer's brother, who was with him at the spuilzie, took away the horse immediately after the offer, keeped, detained, and used him at his pleasure; in respect whereof the Lords repelled the exception.
