Scottish Court of Session Decisions

Subject_1 OATH.
Subject_2 DIVISION I.

Oath in litem.
Subject_3 SECT. II.

Where there is probabilis ignorantia.

Elizabeth Henderson, Relict of James Ross, Stabler in Edinburgh,
v.
Mr Archibald Dunbar of Thundertoun

Date: 21 February 1706
Case No. No 5.

Oath in litem allowed to the pursuer of a spuilzie of kitchen furniture, which had been poinded by mistake for the goods of another person of the same name.

Click here to view a pdf copy of this documet : PDF Copy

Mr Archibald Dunbar of Thundertoun having obtained a decreet of forthcoming before the Sheriffs of Edinburgh, against a person under the general designation of Mrs Ross, indweller in Edinburgh, and thereupon having poinded from Elizabeth Henderson, relict of James Ross, stabler there, as being a Mrs Ross, her pewter vessel, and other kitchen furniture; she raised a summons of reduction of the said decreet, containing a conclusion of spuilzie and damages against Thundertoun; and the decreet being reduced as null upon this head, that it was pronounced against a person not particularly designed by name o surname, or any relative designation of parent, husband, or the like, that could demonstrate the party, but only designed Mrs Ross, indweller in Edinburgh, and others fell under that general designation; the pursuer insisted in her conclusion of spuilzie, which she offered to prove, and craved her oath in litem might be taken as to the quantities and prices of the goods spuilzied.

The Lords allowed to the pursuer the benefit of her oath in litem, not so much for violent profits, the goods taken away by their nature yielding no product, as for damages in her employment of affording entertainment and stabling to strangers, which was prejudged by the spuilzie of her houshold furniture.

Fol. Dic. v. 2. p. 9. Forbes, p. 107. *** Fountainhall reports this case:

1706. February 22.—Elizabeth Henderson, relict of James Ross, stabler in Edinburgh, pursues Dunbar of Thundertoun in a spuilzie, in so far as he, as tacksman of the Excise, having obtained a decreet against John Ross, brewer in Edinburgh, for L. 1000; he arrests in the hands of one Mrs Ross, as his debtor, and takes out a decreet against her, under that general designation, and then sends to the house of this Mrs Ross, and poinds her pewter vessels, and other goods; who not being the person in whose hands the arrestment was laid, raises a reduction and spuilzie; and he offering to prove by her oath, that she was the same individual person, she deponed negative, and then insisted in her spuilzie, which the Lords sustained, and gave her the benefit of her oath in litem, not so much for violent profits, these sort of goods having no product, as for her damages.

Fountainhall, v. 2. p. 331.