Found in conformity with Jardine against Melgum, No 8. p. 9359.
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In a spuilzie betwixt Brown and Murray, there being sundry particulars libelled of diverse natures, contained in the summons libelled to be spuilzied, as insight and plenishing of an house and goods, viz. oxen and horse off the field, and corns out of the barns; and the witnesses having proved spuilziation of some corns out of the barns and no further; the Lords found that the pursuer's oath should be taken, and that he might swear upon all the particulars of the summons, albeit they were of diverse natures, and that no particular was proved but only one; and the pursuer having sworn upon the spuilzie of the insight of the house, which was not proved; the Lords allowed of the oath deponed thereon, and found he might so depone upon all, where any one thing within the summons was proved; but the Lords taxed the prices deponed on by the pursuer in his oath, no party compearing here for the defender.
Clerk, Scot.
Fol. Dic. v. 2. p. 10. Durie, p. 356.*** Spottiswood reports this case:
There was an action of spuilzie and ejection pursued by Brown against Charles Murray, wherein ejection was proved, and the spuilzieing and taking away of twelve bolls of oats only, and not of oxen and household plenishing which was libelled; yet the pursuer got juramentum in litem upon all that he had libelled, and having deponed upon plenishing and plough-graith, albeit it was heterogeneum from the oats that was proved, it was sustained; but his oath was taxed to a lesser quantity than he had sworn.
