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One being pursued for the spuilzie of a horse and a load of corn, alleged, That the horse (which belonged to the miller of a mill without the barony) was lawfully seized and detained as escheat, conform to the statute of King William, Cap. 9. for carrying the defender's tenant's corn to a mill out of his barony to another mill;
Answered: The statute is now in desuetude.
The Lords found the defender liable for restitution of the horse in statu quo; but refused to find him guilty of a spuilzie, in respect of the colourable pretext he had for seizing and detaining the horse from the said statute.
Fol. Dic. v. 2. p. 391. Harcarse, (Spuilzie) No. 860. p. 244.*** Sir P. Home reports this case:
William Thin having pursued Francis Scot of Langshaw for the spuilzie of a horse; alleged for the defender, Absolvitor, because the horse was lawfully poinded, in so far as it was seized upon when the pursuer was carrying corns that were thirled to the defender's mill to be grinded at another mill; and therefore, conform to the statute of William, Cap. 9. the heritor of a mill or his servants may lawfully seize upon the horse, which is confiscated to the master, and the sack and corn to the miller; as also, Langshaws had made an act of court, ordaining the horse, in that case, to be confiscated. Answered, That the foresaid statute is in desuetude, as Craig observes, Lib. 2. Dieg. 8. and that our custom doth regard that statute no farther than that the sacks and corn should be cast off the horse, and adjudged to the master, but that the horse itself should be restored to the owner; and by a decision, the 22d January, 1635, No. 5. p. 1815. voce Brevi Manu, the Lords, in that case, sustained that defence only to assoilzie from a spuilzie; and any act of the defender's court cannot be sustained, being contrary to the law. The Lords restricted the spuilzie to wrongous intromission, and found the defender liable for the price of the horse; but found that he might lawfully seize upon the corn and sacks that were carrying out of the thirle to be grinded at another mill.
Sir P. Home MS. v. 1. No. 498.
*** P. Falconer's report of this case is No. 12. p. 1820. voce Brevi Manu.
