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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Binning of Drumcorse v The Woollen Manufactory of Newmills, and the Procurator-Fiscal of the Sheriff-Court of Linlithgow. [1706] 5 Brn 31 (19 June 1706)
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Cite as: [1706] 5 Brn 31
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[1706] 5 Brn 31
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.
Date: John Binning of Drumcorse
v.
The Woollen Manufactory of Newmills, and the Procurator-Fiscal of the Sheriff-Court of Linlithgow
19 June 1706 Click here to view a pdf copy of this documet : PDF Copy
In the process at the instance of John Binning of Drumcorse, against the Woollen Manufactory of Newmills, for reducing the Sheriff-depute of Linlithgow's decreet, confiscating some packs of wool belonging to John Binning, because of pregnant presumptions of a designed exportation, and his being holden as confest for declining to purge himself by oath,—the Lords reponed him to his oath ; and upon his deponing that he had no formed design to export the wool, reduced the Sheriff's decreet. Whereupon the pursuer urged for restitution of the wool confiscated, and damages, from the masters of the manufactory who seized the wool, and the Sheriff's procurator-fiscal, who rouped and disposed thereof.
Answered for the defenders,—All persons, by the Act of Parliament, being encouraged to discover exporters of wool, and to pursue the confiscation, and to have the two part for their reward, and the procurator-fiscal the third; and the defenders having, upon the faith of the sentence of confiscation, bona fide consumed what they acquired thereby, they cannot be liable in repetition of the wool confiscated, as being the fruits and perquisites of their office bona fide percepti et consumpti; and, at the furthest, could be only liable in quantum locupletiores facti, for the price they truly got for the wool, deducing the charges of the roup, and all their other expenses.
Replied for the pursuer,—The sentence of confiscation being reduced, restitution follows as a natural consequence. And though, in some cases, it may be contended that fructus lucrantur, by being bona fide consumpti, it was never imagined that the stock should follow the same fate.
The Lords found the defenders liable in repetition of the wool at the prime cost, deducing the expenses of the roup; and assoilyied from damages.
Page 108.
The electronic version of the text was provided by the Scottish Council of Law Reporting