Stolen and strayed goods may be recovered summarily without process, or sentence, even from possessors bona fide, who have paid an onerous price.
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Strachan pursues Gordons for a spuilzie of four oxen taken away from them by violence, being then in their plough, by George and William Gordons and others. The defenders alleged absolvitor, because they offered them to prove, that the oxen were their proper goods, and were stolen from them; and that thereafter they were found straying upon the pursuer's ground; and that they were proclaimed as waith-goods by the Sheriff; and that by the Sheriff's order direct to his Majors, the defenders intromitted with them, and so did no wrong. The pursuer replied, That, no way granting the verity of the defence, the same ought to be repelled, because they having the oxen in question, in their peaceable possession four months, they ought not to have been disturbed in their peaceable possession, in this order, without the citation or sentence of a judge. So that the defenders having unwarrantably and violently dispossessed them, spoliatus ante omnia restituendus, and they may pursue for restitution as accords; but the pursuers are not now obliged to dispute the point of right. 2dly, If need be, they offer to prove that they acquired the goods from the Laird of Glenkindy their master, so that being possessors bona fide cum titulo, they could not be summarily spuilzied, or dispossessed: For albeit stolen or strayed goods may be summarily recovered, de recenti, or from the thieves; yet cannot so be taken from a lawful possessor acquiring bona fide.
The Lords found the defence relevant, and admitted the same to the defender's probation; and found also that part of the reply, that the pursuer did possess bona fide, by an onerous title, relevant to elide the defence though it were proven, as to the restitution of the oxen to the pursuer, and the ordinary profits thereof, but not the violent profits; for they found the Sheriff's warrant being instructed, would excuse from the violent profits; but they found that the defender's naked possession, though for four months, by having the goods in the plough, would not infer restitution or spuilzie, but that the goods being stolen or strayed, might be recovered summarily.
