Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk of Session, One of the Reporters for the Faculty.
Subject_2 HEREZELD.

Smith
v.
Sutherland

1766. March .

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In a process of spuilyie and damages, Isobel Smith, widow of a tenant in Caithness, against Captain James Sutherland, factor on the estate of Mey ; this question occurred, how far herezelds were at all lawful; for the fact was, that, under that pretence, Captain Sutherland had carried off a horse from Isobel Smith's farm. It was allowed that they were in practice formerly, but it was contended that they were not now.

The authorities in the information for Captain Sutherland cited for the herezeld were,—Qu. Att. c. 23 ; Skene, voce Herezelder; Craig, L. 2, tit. 8, § 32, and L. 2, tit. 9, § 38 ; Balfour, p. 199; Stair, B. II, tit. 3, § 80; Bank., Vol. II. p. 146, § 69; Ersk., B. II. tit. 6, § 10; Dict., voce Herezeld; and it was proved, in sundry instances, that they were still in use to be granted in that country.

In the information for the widow, the legality of herezelds in general was faintly disputed; but it was alleged, that no herezeld is due, except by a tenant. In this case, Isobel Smith's husband was a cottar ; and for this, reference was made to Qu. Att. c. 23 ; Balfour, p. 199 ; and Dict. voce Herezeld. Further, it was pleaded, that a herezeld, when paid, secured the tenant's representatives in another year's possession after the tenant's death: and for this was cited, Craig, L. 2, tit. 8, § 32, and tit. 9, § 38; Dict., voce Herezeld; Stair, B. II. tit. 3, § 80; Bankton, Vol. II. p. 104; Erskine, B. II. tit. 6, § 10.

Whereas in this case, notwithstanding the exaction of the herezeld, Captain Sutherland had turned her out.

The Lord Ordinary, (27th June 1774,) found, that, in this case, no herezeld was due ; but the Lords avoided saying any thing in direct terms concerning the herezeld ; and, (March 1776,) found, “ That, in this case, Captain Sutherland did improperly take possession of the pursuer's horse; and that thereby, and being otherways interpelled by him, she was hindered from labouring her farm ; therefore, that he was liable in damages.”