Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Master of Rae
v.
Sinclair of Dumbaith and Others

Date: 1 February 1677

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Sinclair of Dumbaith, Sandside, and others, having, in a hostile manner, invaded the Lord Rae's country: There was a criminal pursuit intented against them, for the crimes committed upon the occasion foresaid; but the said pursuit being taken away by a remission, there was thereafter a spuilyie pursued at the instance of the Master of Rae, having assignation from his father, and by his tenants whose goods had been robbed and taken:—And it being alleged against the said pursuit, that it was prescribed;—The Lords sustained the reply,—That the prescription was interrupted by the foresaid process before the justices.

And again, this day, a summons of spuilyie, which had been formerly intented, being produced;—And it being alleged, That, by the said summons and execution upon the same, the prescription was interrupted;—

The Lords found, That the same did not interrupt; in regard it appeared, that the names of the defenders have been blank in the said summons, and since filled up with another ink. And it appeared by the executions, that the same were at the instance of Gray of Arbo, and others, mentioned in the summons, without specifying the said other persons: And the defenders had settled with, and satisfied Arbo, so that it appeared, that the names of the said other persons had been filled up in the body of the summons, of purpose to be a ground for the said reply. But though the Lords did not sustain the process, as to the effect of giving the pursuer juramentum in litem; in regard the goods libelled, were libelled to extend as to the number of goods, and the damage sustained by the pursuer's cedent, to vast sums; exceeding the value of that whole country: yet the Lords did adhere to their former interlocutor,—That they would consider, the time of the advising, the profits of the goods as in a spuilyie.

It occurred to some of the Lords, and was moved,—whether juramentum in litem, being given to the party wronged; and upon that account,—that the quantities and the kinds of goods, taken from him, could not be so well known to others and proven,—if the same be a personal favour; or if it may be extended to an assignee?

Newbyth, Reporter.

Page 218.