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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kenneth Mackenzie, brother of George Mackenzie of Balmuckie, Roderick Mackenzie younger of Reidcastle, Lewis Mackenzie his brother, Donald Mackenzie of Kilcowie, John Chisholm of Knockfin, and Archibald Chisholm his brother v. Mr. Daniel Mackilligin, and Mr. John Mackilligin, Ministers of the Gospel at Allness [1723] UKHL Robertson_431 (6 February 1723)
URL: http://www.bailii.org/uk/cases/UKHL/1723/Robertson_431.html
Cite as: [1723] UKHL Robertson_431
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SCOTTISH_HoL_JURY_COURT
Page: 431↓
(1723) Robertson 431
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 96.
v.
Subject_Spuilzie. — Art and Part. —
Certain persons who were present with the rebels, (under the command of Lord Seaforth,) when a spuilzie was committed, are found liable in damages, conjunctly and severally, for the damages committed by the said party.
The amount of the damages ascertained by the oaths of the pursuers.
Interest allowed from the day, after the party of rebels had left the premises spuilzied.
Subject_Costs and Expences. —
The appellants having failed to appear, on the day appointed for hearing, the respondents' are heard, and the judgment affirmed with 100 l. costs.
In May 1718
(a) the respondent Daniel, in his own right, and by virtue of a factory from the presbytery of Dingwall, and the other respondent John, brought an action of spuilzie against the appellants, before the Court of Session, for satisfaction of certain damages occasioned by the appellants; and the respondent stated, that upon Monday the 10th of October 1715, the appellants with a party of armed highlandmen, under the command of the late Earl of Seaforth, came to the village of Allness where the respondents resided, and continued there till Saturday the 15th, during which time, they took possession of the houses of the respondents, carried off a great part of the houshold furniture, and cut and destroyed the rest, carried off, or tore, and destroyed all the respondent Daniel's books, and likewise a library of books belonging to the presbytery of Dingwall, and likewise two parochial libraries, of all which the respondent Daniel was the keeper, destroyed all their corn, and cut and destroyed the planting, and every thing of value that could be found belonging
_________________ Footnote _________________ (
a) This is entirely taken from the case for the respondents; none appears for the appellants, and as they deserted the appeal, it is probable that none was presented for them.
Page: 432↓
The appellants made defences, in general, denying the libel; and a defence of alibi was also set up by the appellants Roderick and Donald Mackenzie. In June 1720, of consent, a commission was granted for examining witnesses by the respondents to prove their libel, and for the appellants to prove their defences; and accordingly several witnesses were examined for the respondents, but none were examined by the appellants; and the term was circumduced against them.
The cause coming to be heard, the appellants did not appear, but the Court having heard and considered the depositions in the cause, on the 8th of July 1721, “found it proved, that at the time libelled a party of the rebels, which were then under the command of the late Earl of Seaforth, came to the town of Allness, within which the respondents' houses are situated; and that the said party continued there several days, and that by the said party, the respondent Mr. Daniel's house was plundered, his doors, trunks, and chests broken open, and his books and the plenishing and furniture of the house carried off and destroyed; and that his growing corns, his corns in his barn, and barn-yard, and his peats and herbage of his yard, were also consumed or destroyed by the said party: And also found it proved, that at the said time, and by the same party, the respondent Mr. John Mackilligin's house was rifled, his plenishing carried off, his coros, peats, and planting destroyed, and his bee-hives and the locks and doors of his house carried off; and found it proved, that the appellants were all of the said party; and found the defence of alibi not proved; and also found that the aforesaid qualifications proved are relevant to infer that the appellants were art and part in the commission of the above spuilzies; and that they are therefore liable conjunctly and severally in solidum for the damages which were thereby done to the said Mr. John and Daniel Mackilligins, respondents; and remitted it to the then next week's ordinaries or to either of them, to take the said Mr. Daniel's oath in litem on the particulars and the extent and value of his damages, and on the violent profits.”
The respondent Daniel having been examined swore to the extent of his damages, and exhibited an inventory thereof; and on the 28th of July 1721, the Court “Having considered the inventories referred to by the respondent Daniel in his oath, and having advised the said oath, found the appellants liable conjunctly and severally to the said Mr. Daniel Mackilligin for the values of the books in the two inventories produced, and also for the sums in the inventory of the goods spuilzied from the said Mr. Daniel, extending in all to the sum of 2482 l. 12 s. Scots, and for the interest of the said sum from the 16th day of October 1715 years, and in time coming during
Page: 433↓
The respondent John being examined upon a commission, also swore to the particulars which he had lost, and the values thereof; and the Court pronounced another interlocutor (a) of the same nature in John's cause, and decerned the appellants to make him satisfaction for the sum of 1279 l. 7 s. Scots, with interest; and his expences were decerned for, amounting to 134 l. 16 s. Scots.
Both these decrees having been extracted, the appellants brought an action of reduction; but after a hearing of the cause on the 24th of July 1722, the Court “repelled the reasons of reduction;” and to this interlocutor they adhered on the 31st of July 1722.
Entered, 23 Oct. 1722.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 28th of July 1721, 23d February 1721–2, and the affirmances thereof the 24th and 31st of July 1722.”
Heads of the Appellants' Argument.
Whatever damage the respondents may have sustained, there was no proof that the same was occasioned by means of the appellants, or that any of them took any of the respondents' goods, or gave any orders for so doing; it were therefore unreasonable to load them with making reparation for what damage the respondents sustained.
There is no proof of the value of the respondents' damages, but their respective oaths in litem; which was an indulgence they did not so much as pray to be allowed by their libel, and consequently must avoid the decree as being ultra petita, especially since the action was not commenced soon after the damage done.
The decree gives the respondents interest for their several demands from the 16th of October 1715, though in the libel the charge is, that the facts were committed on one or other of the days of September, October, November, December, January, or February of the said year.
The appellants are decreed jointly and severally, to pay the respondents their damages, though it was not prayed by libel.
_________________ Footnote _________________
( a) The date is not mentioned; but it appears to have been the interlocutor February 1721–2, which was appealed from.
Page: 434↓
The respondent Daniel had allowance for the expences of both actions, and his personal expence in attending the same; and yet, by the decree in favour of the respondent John, he is likewise allowed his expences; so that the appellants were subjected to a double payment of expences.
Heads of the Respondents' Argument.
It appears by the proofs in the cause, that all the appellants were present in the village of Allness with the armed Highlanders; that several of them were in the respondents' houses at that time; and that during the time the appellants and the rebels were there, the houses of the respondents were plundered by the said rebels, and every thing therein carried off and destroyed. These facts being established, the decree against the appellants must be just; for where a number of men commit violence, it may be very difficult (nor indeed is it necessary) to prove the particular persons who destroyed or took away the goods: It is sufficient to prove that the injury or damage was done by such a party, and that the appellants were of that party, which is sufficiently proved by a multitude of witnesses.
An oath in litem is, by the law of Scotland, as much the determined method of proof where a spuilzie is libelled, as writ or witnesses are in any other case; and indeed in most cases of that nature, any other proof is impossible: And no man in his libel is obliged to set forth the method of his proof, and consequently this decree has proceeded regularly and according to the usual forms in such cases. The action was commenced in May 1718, which will avoid any objection from delay.
The libelling of a spuilzie in its own nature implies violent profits, damages, and expences; that is, where the nature of the thing spuilzied admits of violent profits, they are decreed; otherwise the Judges decree interest: and the decree has been very indulgent to the appellants in giving interest, for certainly the respondents must have sustained much greater damage; and their demand thereof was actually libelled. It appears by the proofs that the rebels came to the village of Allness on Monday the 10th, and continued till Saturday the 15th of October, during which time the damage was done; and it was therefore regular to decree interest from the 16th of October, since before that time the damage was done.
A spuilzie being libelled against several persons, it imports their being liable jointly and severally; for since they were all accessary to the wrong, the judgment was rightly pronounced, and the same is particularly so libelled.
The respondent John has no allowance for expences, but such as were not allowed to the respondent Daniel; and therefore the appellants are not liable to a double payment; and the respondents conceive that the Court has made them but the just and usual allowances in cases of spuilzie, which indeed are less than the half of the expences which the respondents were out of pocket.
Page: 435↓
Judgment, 6 Feb. 1722–3.
Whereas this day was appointed for hearing counsel upon this appeal and answers: Counsel appearing for the respondents, but no counsel for the appellants, and the respondents' counsel being heard and withdrawn, It is ordered and adjudged, that the petition and appeal be dismissed; and that the interlocutory sentences or decrees therein complained of be affirmed: And it is further ordered, that the appellants do pay, or cause to be paid to the respondents, the sum of 100l. for their costs in respect of the said appeal.
Counsel: For Respondents, Ro. Dundas. Will. Hamilton.