Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. VII.

Effect of Fraud - of Force and Fear - of Simulation of a Gift of Escheat - of Spuilzie - of Pactum contra Fidem - of Minority - of Reduction ex capite lecti - of Donatio inter Virum et Uxorem - of Payment to an Adjudger.

Hay
v.
Leonard and Others

Date: 21 November 1677
Case No. No 98.

Spuilzie is a vitium reale as well as theft, and equally competent against singular successors.

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James Hay pursues John Leonard for spuilzieing from him a pearl worth 9000 merks, and David Carnegy and others, as havers thereof, for restitution. It was alleged for Leonard, Absolvitor; because he offers him to prove, that the pursuer and he entered into a co-partnery for getting of pearls in the water of Southesk, and that they got several pearls, which were all in the pursuer's custody, and having shewn the defender the pearl in question, and given him it to see, and demanding it back, he refused, as having equal interest in it, until a division of the whole pearls were taken. It was answered, That this defence is contrary to the libel, expressing violence. The Lords sustained the defence, unless the pursuer be special in the violence. It was alleged for Carnegy, That he had bought this pearl as a merchant, and had no accession to any violence, and therefore cannot be obliged to restore, even though it had been violently spuilzied; for though theft be labes realis, that is effectual against every singular successor, yet that hath never been extended to spuilzie, and it is of public interest to secure commerce, in purchasing of moveables, which neither hath nor requireth writ, and therefore no person can be obliged to dispute the seller's right. The pursuer answered, 1mo, That whatever the law extendeth as to theft, must much more be extended to spuilzie, which is robbery. 2do, Albeit the law hath allowed the purchase of moveables for an onerous cause to be valid, without necessity to prove the purchaser's author's right, which is presumed from lawful possession, so that it will not be sufficient to procure restitution, to libel that the goods in question belonged to the pursuer, and were in his possession as his proper goods, unless the pursuer do also condescend, that the goods could not pass from him by sale, or any other title of commerce, but that they were stollen, strayed, given in grasing, or custody, or that they were in a defunct's possession the time of his death; all these take off the presumption of right by possession, and much more when the pursuer condescends that the goods in question were violently taken from him.

The Lords sustained the first reply, and found that spuilzie was vitium inhærens as well as theft; but found, that if no spuilzie were proved, but that a co-partnery were proved, the buying from one co-partner did secure the buyer against the other, and left him to pursue his co-partner actione pro socio.

Fol. Dic. v. 2. p. 69. Stair, v. 2. p. 561.