Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 25 January 1688
The Earl of Breadalbine, and John Campbell, his Son, v. Sinclair of Dunbaith and Dumbar of Hemprigs
Click here to view a pdf copy of this documet : PDF Copy
See the prior part of the Report of this case, Dictionary, p. 10,522.
Sinclair of Dunbaith and Dumbar of Hemprigs being, on the 22d July last, found liable in a spuilyie of some horses, pursued by Mr John Campbell; Dunbaith gives in a bill, signifying that these horses were poinded on Hemprigs' horning; and that, on his own horning, some cows were only poinded. Which was sustained, because they were not proven to have belonged to Mr John, as the horses were; nor had. Mr John offered to depone thereanent at the market-cross, as he did for the horses; and therefore craving he may be assoilyied from the spuilyie, and the same in solidum decerned against Hemprigs. Answered,—Quoad Mr John, they must be both liable; because, he having convened both, they did not propone partial defences, but each suscepit in se litem, and stated himself contradictory; and an act of litiscontestation is a judicial novation and transaction. And, quoad Hemprigs, Dunbaith must also be liable, for he assisted him in the poinding of these horses, the illegality whereof consisted in thir two:—1mo, That it was done in the night, or in the morning early, before sun-rising, with violent breaking up of the stable-doors. 2do, They refused to take Mr John's oath at the market-cross, and Dunbaith was present, and accessory to both, and got the best of the horses.
