What Title requisite to found an Action of Spulzie.
Lady Renton v. Her Son
Date: 7 July 1629 Case No. No. 20.
Spuilzie of teinds.
Click here to view a pdf copy of this documet : PDF Copy
The Lady upon a sasine of the lands of Horslie, cum decimis inclusis, pursuing her son for spuilzie of the saids teinds anno 1628, and the defender alledging, that he intromitted by virtue of a lawful tack in his person, set before the pursuers' right, and opponing a nullity against her right; the Lords found, seeing the pursuer alledged possession of the teinds in her person divers years preceding the year libelled, by virtue of her foresaid right, that the excipient could not debar her from continuing her possession brevi manu by stopping and apprehending thereof at his own hand, without order of law; and found, that albeit her title had not been good, but that the excipient's had been better, yet that she had competent action to pursue this spuilzie, quia spoliatus ante omnia est restituendus, neither was it respected what the defender alledged, that the maxim spoliatus est ante omnia restituendus, holds only where there is spolium corporis ejusdem, which was before possessed by him who seeks restitution, which is not here, where the pursuer's possession of other crops, cannot infer that she was possessor of this crop libelled, whereof she never had possession; and it was not respected where the pursuer also replied, that there was no other form of interruption against her right and alledged possession in matter of teinds, but only to alledge the insufficiency of her right, and to exclude any pursuit founded thereupon, when the same is drawn in dispute, by maintaining of his own right; for in teinds it is not as in lands, where the possession is interrupted by warning; but in teinds, albeit inhibition be used, yet the same needs not to be used by him who is in possession, so that he needed to serve no inhibition himself, being possessor by virtue of a sufficient right; which reply was repelled, and the spuilzie sustained.
Act. Stewart.Alt. Nicolson et Craig.Clerk, Gibson.
Fol. Dic. v. 2. p. 389. Durie, p. 457.*** Auchinleck reports this case:
A colourable title may sustain action of spuilziation of teinds, where the pursuer has been sundry years in possession, and is dispossessed by him who pretends no right of his own, but to maintain his violent deed of spuilzie alleges the title whereby the pursuer bruiked the teinds was not good; which allegeance the Lords repelled.
