A pedlar left his pack in pledge. The creditor, by warrant of a Judge, got the goods valued and sold. This found irregular. They ought to have been poinded.
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——Chapman having left his pack in custody with Brand, in Dundee; about ten or twelve days after, Brand opened the pack, and made use of the ware. The Chapman now pursues him for a spuilzie; who alleges absolvitor, because the pack was put in his hands for security of a debt due by the packman, and he being informed that the packman would not return, did, by warrant of a Bailie in Dundee, cause four of the neighbours inventory and price the ware.—It was answered, Non relevat, for though the pack had been impignorate, the defender could not apprise it summarily, but behoved to take a sentence to poind the same.
The Lords repelled the defence.
It was further alleged, That there could be no spuilzie, nor oath in litem of the pursuer, because there was no violence.—It was answered, That the oath in litem is competent, whether it were a spuilzie or a breach of trust, actione depositi.—It was answered, That the oath in litem being granted, mainly because parties injured by breach of such trusts, cannot be put to prove by witnesses, that which is taken from them, none being obliged to make patent his pack, or other private goods to witnesses; yet, where there is another clear way to prove the quantities, viz. the oaths of the four persons who opened the pack, there is no reason to put it to the pursuer's oath, especially seeing their inventory is not the eight part of what he claims.
The Lords admitted the pursuer's oath, in litem, reserving their own modification, with liberty to the defender, if he thought fit, to produce what of the ware he had; and to produce these four persons, that the packman may depone in their presence. See Oath in Litem.
