A spuilzie having been restricted to wrongous intromission, because not pursued within the three years; the Lords refused to allow any profits, whether ordinary or violent; and found that the pursuer could seek only ipsa corpora.
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In an action of spuilziation of certain sheep pursued by Dunmuir, flesher in Edinburgh, against one called Payweell, which action was restricted to wrongous intromission, and the spuilzie past from, because it was not pursued within three years; the Lords found, That no profits ought to be granted in actions of wrongous intromission, neither ordinary nor violent profits; and that in such actions the pursuer had right only to pu sue, and seek ipsa corpora, without profits, albeit he contended that the wrongous intromission gave him right to seek the ordinary profits; for though he passed from the spuilzie, which he behoved to do for not pursuing the same within the time appointed by the act of Parliament, yet that never purged the wrong done to him by the defender, but took only away from him that privilege of juramentum in litem, which he had, if the spuilzie had been sustained; but in all other consequences, he alleged that his action stood good to him for the profits of so many goods as should be proved were intromitted with by the defender; which reply was not sustained, nor action granted for the profits.
Act. Nicolson younger.Alt. Russel.Clerk, Gibson.
Fol. Dic. v. 2. p. 118. Durie, p. 113.
