Prescription of spuilzie by not pursuing for three years, not interrupted by a criminal pursuit for the same fact.
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The Master of Rae, as assignee by his father and his tenants, pursues Dunbeath and others for a spuilzie committed by them in anno 1668, having entered Sutherland with a great number of men, and committed a great many depredations. The defender alleged, That the spuilzie ought to be restricted to wrongous intromission, because it was not intented within three years of the fact, and therefore doth prescribe as to the privilege of spuilzie, the oath in litem, and violent profits. It was answered, That for the same fact there was a criminal pursuit within the three years. It was replied for the defender, Non relevat, because upon the fact many distinct and different actions may arise, as spuilzie and contravention; yet the insisting in a contravention will not hinder the prescription of the spuilzie; so upon this fact there is an action criminal, which is public, for punishing of the offenders, wherein there was no conclusion as to restitution or damages of the party injured; and there was another distinct action of spuilzie, both which might have been consistent and intented together; and the passing from the one, whether tacitly or expressly by forberance three years, did not pass from the other; and it were a dangerous matter to give an oath in litem to instruct a libel, wherein there is 300,000 merks libelled.
The Lords found, That the action could only be sustained for restitution, and that the criminal pursuit did not interrupt the prescription as to the civil pursuit, they being wholly distinct; but declared they would take consideration to extend the ordinary profits, in regard of the odiousness of the depredation.
Fol. Dic. v. 2. p. 119. Stair, p. 411.*** Dirleton reports this case:
In a spuilzie at the instance of the Master of Rae against Dunbeath, it was alleged, The pursuer was prescribed, because not intented within 3 years; so that it could not be sustained to give the pusuer juramentum in litem and violent profits. It was replied for the pursuer, That long within the 3 years, a pursuit for depredation had been intented before the the Justice; which being of a higher nature, and including virtually and in consequence, the conclusion of restitution and profits, was a sufficient interruption as to this pursuit.
The Lords, notwithstanding, found the pursuit prescribed.
Reporter, Newbyth.Clerk, Mr Thomas Hay.
Dirleton, No 322. p. 156.*** Gosford also reports this case:
In an action of spuilzie pursued at the instance of the Master of Rae against Dunbeath, Sandsyde, and others, bearing for violent profits; and it being urged, That the pursuer should have juramentum in litem; it was alleged for the defenders, That they could only be liable for wrongous intromission, to be proved either by witnesses or the defenders oath; because the said action of spuilzie and violence was prescribed by act of Parliament of King James VI. not being pursued within three years after the alleged spuilzie. It was replied, That the said action was wakened within the years of the prescription, in so far as there was a criminal pursuit intented against the defenders for these spuilzies before the Justice; and albeit it took no effect, becaues of a demission obtained by the defenders, and produced in judgment, yet it ought to be sustained as a legal interruption of the prescription, seeing the act of Parliament is founded upon that same principle of the common law, Injuria seu verbalis seu realis ad certum tempus suppressa dissimulatione præsumitur sopita; which cannot be said here, the resentment and complaint being made so public within a short time after committing of the violence, and in which criminal action the Justices might have given sufficient reparation; and accordingly it is statute in the 9th act of the 2d Parliament King Charles II. It was duplied, That it is clear, by the act of King James VI., that all spuilzies and depredations not being pursued within three years prescribe; and the late act of Parliament was made after the alleged spuilzie libelled. The Lords did restrict the pursuit to wrongous intromission, and denied to give the pursuer juramentum in litem, reserving to themselves to modify the process after probation, upon that reason, that these criminal pursuits are only ad vindictam publicam, nor probation led either for worth or damage.
