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The defender in a spuilzie having alleged, that the goods were his own, and that, having given them to the pursuer to be grazed, he might have taken away his own goods, it was replied, That the pursuer was not obliged to debate the right and property of the said goods; but in spolio, he needed libel no more but that the goods were upon his ground and in his possession, and taken away vi and in manner libelled; and spoliatus ante omnia restituendus.
The Lords debated among themselves, whether the defence be relevant; and did not decide the case; some being of opinion, that if it should evidently appear that the pursuer was not in possession of the goods as suos, but in behalf of the defender, as if there were a writ betwixt the pursuer and defender, bearing, that the goods were the defender's, and that the pursuer contractu locationis et conductionis had taken the same in grazing, that the defender could not be liable for spuilzie of his own goods; but if it should appear that there was any violence in taking them away, he may be pursed for a riot.
