Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lyell v. Brand
Date: 20 December 1666
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Lyell, a chapman, having deposited his pack custodiæ causa with Brand, a merchant in Dundee, from whom he also borrowed L. 5 Sterling: and Brand, after the chapman's absence by the space of a month, having by warrant of a bailie opened the pack and inventoried the same, but without any sentence recovered against the chapman for payment of the L.5; and being pursued for spulyie of the pack, he Alleged, That the chapman being his debtor, he did only sight the pack, to see what he had for his money, but noways alleged the pack was impignorat to him for his security; and being done authore prætore, it ought to liberate him from a spulyie. The chapman was content to restrict the spulyie to vitious intromission, providing he gave juramentum in litem.
The Lords found the libel ought to be restricted; but in respect the pack was closed, and so delivered to the defender, and only depositat custodiæ causa, and not impignorat, and that it was impossible to prove the libel otherways nor by the pursuer's oath, they allowed him juramentum in litem. This may seem strange, how the Lords could allow this kind of oath, which is only in spulyies, and in no other actions, and which extra that particular case is not approven in law; being juramentum affectionis, and not pretii et valoris. But the Lords reserved the modification to themselves, at the advising of the cause.
Act. Dinmuire.Alt. Mackeinzie and Colvill.
Advocates' MS. folio 56.
