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Scottish Court of Session Decisions >>
Somerville v Hamilton. [1541] Mor 14737 (11 February 1541)
URL: http://www.bailii.org/scot/cases/ScotCS/1541/Mor3414737-025.html Cite as:
[1541] Mor 14737
A just title acquired after the spuilzie does not liberate the defender retro from the date of his title.
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In the cause of H. Somerville against N. Hamilton, anent spuilzieing of him of the fruits of his parish clerkship, the actor's witnesses for proving of the spuilzie produced, proved him spuilzied two years or more before that time of the spuilzie, which time was libelled, and so proved not libellatur tempus spolii. Nevertheless the Lords decerned sentence condemnator contra reos for the years libelled; and the reason was, because of the practique “spolians semel censetur et semper spoliare donec spoliatue semel sit restitutes;” and in the same cause the Lords decerned, That “titulus obtentatus domino vel habente auctoritatem disponendi de rebus per spoliatorem post spolium semel commissum,” may not save spoliatorem a spolio from the date of his title in posterum, because “opportebat spoliatum semel restitui ante quam ipse spoliator possit justa quavis ratione passidere rem spoliatam;” and so it was a practique before in causa cujusdam contra daminum de Crawfurd, that spuilzied peats from certain poor men, and put them violently out of possession of a moss and fuel, casting therein, and thereafter obtained infeftment of the King, but the title saved not from the spuilzie, and was condemned to restore the actors to their possession foresaid; also the said Hamilton was condemned to restore actorent Somervell to the fruits of his clerkship.
Fol. Dic. v. 2. p. 389. Sinclar MS. p. 11.*** Balfour reports this case:
If any man commits ejection or spuilzie against any tenants, and thereafter obtains right and title from the Lord of the ground, or from any other having power to give the same, to the lands out of which the tenants were ejected, or to the goods spuilzied, the same title and right supervenient is not sufficient to save him from the said ejection or spuilzie; because the spuilzier may not, by such title and right, be called or understood to be just possessor, except he who was ejected or spuilzied be first restored to his possession.
