The Heritor of the Mill of Glenassen v. The Tenants of Spado
Date: 6 January 1681 Case No. No. 42.
In a summons libelling quantities of abstracted multures, the pursuer was not obliged to prove the quantity, the defender not having denied.
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The heritor of the mill of Glenassen having pursued the tenants of Spado for abstracted multures, and litiscontestation being made, and probation led; at advising of the cause, the lands of Spado were found thirled, but nothing was proved as to the particular abstractions; which being objected, the pursuer answered, that he having libelled particular quantities, the defender proponed his defence without denying the quantities, which therefore freed the pursuer from proving thereof, so that they must be holden as proved; for when defenders acknowledge not the quantities, they do propone their defence denying the quantities. It was replied, That though defenders are not so cautious sometimes, as to expressly deny the libel or quantities, yet that never liberates the pursuer from proving, unless the nature of the defence import an acknowledgement of the libel or quantities, as lawfully poinded in a spuilzie, which acknowledgeth the defenders’ intromission, but allegeth that it was warrantable, and so no spuilzie.
The Lords found, That the not denying the quantities did not acknowlege the same, yet they granted commission to take the defenders’ oaths in the country, what were the true quantities of the abstractions.
