Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Gordon of Davidstoun and Isobel Robertson
v.
William Menzies

Date: 11 June 1680

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Gordon of Davidstoun and Isobel Robertson pursue the Laird of Weym, and William Menzies his tenant, for a spuilyie of five horses and the said Isobel's whole household-plenishing. The defenders being absent, the libel was admitted to the pursuer's probation: who proved, that, in the night-time, some unknown person committed this spuilyie; and that Gordon of Davidstoun, having followed the goods, found one of the horses in the possession of William Menzies, and marked the horse in the lug. Whereupon the question arose,—how far this probation could reach, the defender being absent; and, especially, whether the spuilyie being committed in the night-time, where there was no witnesses and the spuilyiers were not known, that a part of the spuilyied goods being found in the possession of William Menzies, did not infer a presumptive probation that he was actor or resetter of the spuilyied goods, and so liable to the whole spuilyie.

The Lords found, That it did not so infer a presumptive probation; but that the said presumption might be taken off, if Menzies could instruct that he came warrantably to this horse: but, because Menzies was absent, and probably upon design, because it could not be proven who the spuilyiers were, the Lords ordained a second citation to be used against Menzies, with this special certification,—that if he did not appear, and instruct that he came warrantably to the possession of this horse, that he should be decerned in the whole spuilyie, as actor, resetter, or accessary thereto.

Vol. II, Page 769.