Scottish Court of Session Decisions

Subject_1 VIOLENT PROFITS.

Clark
v.
Sinclair

1580. July
Case No. No. 5.

A party stopped panwood from coming to another mail's salt-pan. He libelled the loss of so much salt daily. The Lords found relevancy, but subject to modification.

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There was one Clark in Dysart that pursued my Lord Sinclair for the violent ejecting him forth of a salt-pan, the which he had in feu and heritage of the said Lord; and he qualified his ejection into this sort, that the said Lord stopped his colliers which were hewing in the heugh coals and pan-wood to the pan, in so far as he compelled the said colliers to hew to himself, and compelled the leaders that led to Clark's pans to lead to his own behoof, and so, through inlake of the coals, the pan lay idle, therefore he concluded the profit of the salt, albeit he was but ejected furth of the winning of the coals. It was excepted against the summons, by my Lord Sinclair, That the summons was not relevant to infer such an ejection, and that because he qualified only the stopping of the hewers and leaders of coal, and compelled them to lead into his own behoof, whereby he could not infer the profits of salt, hut, at the most, the coals that were spuilzied; and the inconvenience appeared to be great for either of stopping of coals or away taking of the same to infer any ejection and interest of profits of a salt-pan, in respect he libelled not continuum actum, but he did the same at such a time, for albeit he had stopped the leaders, he might have got other leaders, and so super unico actu vel super diversis actibus, there ought not to be set a continual ejection and interest of profits of 10 or 12 hundred merks, as was libelled, but only the profits of things which were taken away; which were coals. To all this was answered, That there was no inconvenience, and that it might stand both together to libel ejection, by stopping and compelling of his colliers, and also spoliation of coals, et quod potuit actor interdicto unde vi et etiam actione bonorum raptorum in uno lybelto; for it might stand, that all men must be ejected out of his ground and portion, and also his gear taken away off the same ground at the same time; and as to the interests and profits of salt, the same might be refunded, because quod tam in actione bonorum raptorum et unde vi sit restitut cum omni causa damni; for if the pursuer had not been stopped in hewing and leading of his pan-wood, he would have tarried the same to the pan, and converted the same in making salt, et de jure tenetur is qui vim intulit restituere omnes fructus quos ejectos non percepit. The Lords by interlocutor found the summons relevant, and admitted the same to probation; nevertheless, they reserved the modification of the profits to themselves, because immensas petebat actor, and that there were some expenses necessary to be deducted, as were the expenses of winning of coal, leading, and carrying of the same.

Colvil MS. p. 79. & 80. (Second Copy.)