Scottish Court of Session Decisions

Subject_1 JUS TERTII.
Subject_2 SECT. III.

Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.

Kinfauns
v.
Craigie

Date: 16 June 1554
Case No. No 19.

An action of spuilzie was sustained, although, at the time of committing it, the party injured was at the horn, it being found jus tertii to the defenders to allege, that the action was competent only to the King and his donatar.

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Anent the spuilzie pursued by the Laird of Kinfauns against the Laird of Craigie and others, it was alleged by the said Laird of Craigie, and his colleagues, that the said Laird of Kinfauns had no action to pursue the said spuilzie, by reason, that the said Laird was at the King's horn the time that the said spuilzie was committed, and so the action pertained to the King or his donatar. It was replied by the said Laird of Kinfauns, That howbeit he was at the horn, the Laird of Craigie's exception was no ways relevant; because he alleged jus tertii, and the whole goods libelled were in his possession the time of the said spoliation; and howbeit the King, or his donatar, might have meddled with the gear, yet no other party having no title thereto, nor command of——, might meddle with the said Laird's gear, it being in his possession the time of the spuilzie; but he had good action to pursue the same after he was relaxed from the horn. In respect of the said reply, the Laird of Craigie's exception was repelled.

Then it was alleged by the said Laird of Craigie, That he did no wrong, howbeit such spuilzie had been committed, he being on the ground, as the said Laird alleged in his libel, which was burning of houses, cutting and destroying of yards and trees, because the said Laird of Craigie was commanded by the King's letters, under great pains, to pass, concur, and assist the Sheriff, to take and apprehend the said Kinfauns, he being rebel for the time, and to asseige if he were therein; and so, if such burning and destroying was made, it was necessary, for the burning of the said house, and at the command of the authority, which exception was admitted, and given to Craigie's proof. It was replied by Kinfauns, That Craigie being his mortal enemy, purchased these letters himself, and with them came and asseiged the said Kinfauns; he knowing him to be his enemy mortal, durst not come forth, but leisomely he might defend himself from his enemy mortal; the other did wrong, in respect of his invasion, and spuilzie foresaid; which exception was repelled, and the exception foresaid admitted, notwithstanding the same reply, in respect Kinfauns was at the horn.

Fol. Dic. v. 1. p. 518. Maitland, MS. p. 119.