What understood to be a Spuilzie. - What Damages allowed.
Donald Dounie and Others v. Graham of Drynie
Date: 14 June 1715 Case No. No. 12.
Unwarrantable intromission infers spuilzie.
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The said Dounie and three other fishers, being tenants in some acres of land to Drynie, for which they paid a small silver duty; but he had the teind of all the fishes they brought on his ground, besides some other casualities, such as carriages, &c.—they at Witsunday 1712, do all suddenly remove from their possessions, and carry off with them their plenishing, &c. leaving only the crop upon the ground; but in harvest thereafter sent and made offer to him under form of instrument of their year's money rent, and caution for all other debts which he should verify against them, and thereupon required liberty to cut down their corns, which Drynie refused; whereupon their procurator protested against him for damages, if he should hinder or divert them from shearing or ingathering their corns, at any time after the date of the instrument. Notwithstanding whereof, Drynie caused shear and inbring the corn; whereupon a process of spuilzie being intented at the tenant's instance;
It was answered for the defender, 1mo. That action of spuilzie is only competent to the natural possessor; but in this case the corns were deserted by the possessors, and left open to the defender's possession. And it is observed by the Lord Stair, B. 1. T. 9. § 19. That a spuilzie of corns was elided by the defender's entering to the possession of the ground whereupon the corns were growing; Elliot contra The Lord of Buccleugh. Sect 7. infra. And is also observed by Durie, in a case betwixt Alison and Traill, No. 9. p. 14728. That a defender being convened for a spuilzie of certain of the pursuer's goods, which were libelled to be in the defender's own house, the Lords found no action of spuilzie could be sustained for the goods libelled to have been in the defender's house, albeit the same pertained to the pursuer. 2do, That what he did, was for preserving his right of hypotheque.
To all which the pursuer's opponed the above instrument, wherein offer was made of payment of the silver, and caution for other things which were indefinite; and therefore concluded, that debarring by actual shearing of the corns, and entering to the possession, was in itself a spuilzie.
The Lords found the defender's intromission with the goods libelled, belonging to the pursuers, was illegal and unwarrantable, and inferred a spuilzie, &c.
Alt. Boswel.Clerk, Sir James Justice.
Bruce, v. 1. No. 197. p. 119.
