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Scottish Court of Session Decisions >>
Bryson v Somervill. [1565] Mor 1703 (17 November 1565)
URL: http://www.bailii.org/scot/cases/ScotCS/1565/Mor0401703-020.html Cite as:
[1565] Mor 1703
How far the Command of a Superior infers Bona Fides.
Bryson v. Somervill
Date: 17 November 1565 Case No. No 20.
Found in conformity with the above.
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Anent the action pursued by Janet Bryson against Janet Somervill, and William Sharer, her son, for a spulzie committed by umquhil David Sharer, her husband, and herself, and their son being in company with them; it was alleged for the said William, That in time of the said spulzie committed by his father and mother, he was within the age of twelve years, and but alleged to be in company with his said father; and so not being doli capax, et in patria potestate, non potuit contrahere obligationem.—It was alleged by the said pursuer, that the said William was past ten years, and therefore might be called for the said spulzie, because he was doli capax, quia in proxima erat pubertati et malitia potuit supplere ætatem; neither the woman nor he could be excused, by the man being father to the boy, and husband, quia omnes in pari delicto parem pænam sustineant, et cum hisce actio ex maleficio orietur, omnes tenebat.—It was alleged by the said William, because the said pursuer alleged him to be of ten years and not fourteen, therefore he should be assoilzied: Whilk allegeance of the said pursuer was repelled; and the allegeance of the said defender admitted; and the said defender assoilzied frae the spulzie, for the causes foresaid.—It was alleged by the said Janet Somervill, That she should be assoilzied frae the said spulzie, because it was alleged in the pursuer's libel, that umquhil David Sharer her husband, and she in company with him, committed the said spulzie; so on noways should she be called after his decease, she neither being called after as heir, or executrix to him, but allenarly upon her own deed, done in company with her own husband in his time, he being her principal head: Which allegeance of the said Janet, defender, was admitted, and she affoilzied frae the said spulzie. The like was practiced before, in my Lady Crawfurd's case, who being pursued for the spulzie of, was absolved, because her husband was there; and my Lady Ratie, pursued by ane Bruce, was absolved for the samen reason. See Husband and Wife.
