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Scottish Court of Session Decisions >>
Balmains v Balvaird. [1583] Mor 14746 (00 July 1583)
URL: http://www.bailii.org/scot/cases/ScotCS/1583/Mor3414746-045.html Cite as:
[1583] Mor 14746
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In the action pursued by the Laird of Balmains for spoliation of certain evidents, the libel being admitted to probation, and the process being advised, and the libel found proved, it was alleged by Balvaird, that the said Balmains ought not to have the quantity of the evidents and writs contained and expressed in his libel to his probation, because the Laird of Balvaird intromitted with the evidents bona fide, and by gift of Balmain's escheat being disponed unto him, he raised letters thereupon, and by virtue of the same did intromit with the evidents. It was answered, That the gift and disposition of the escheat takes in dispositions of sums of money, but heritable evidents and infeftments could not come under escheat conform to the daily practice and laws of this realm; and therefore, in so far as he did intromit with his heritable evidents and infeftments he committed spulzie, and having committed spuilzie, he was in dolo aut saltem in lata culpa quæ dolo equiparatur et contra talem juratur in litem L. 5. et 11 D. De in litem juran C. Ibid. And it was also lately practised betwixt the Commendator of Cambuskenneth, and David Balfour, that having proved spoliation and ejection forth of a barn, got the contents contained in a bonnet case of gold, silver, and precious jewels, to his oath, de quo vide No. 20. p. 9369. voce. Oath; for how could any man prove the possession and contents of his own evidents otherwise than by his oath, considering that men keep their evidents most secretly, et non patet eorum aspectus cuili-bet de domo et familia. The Lords una voce found by interlocutor quod rarum est, that Balmains should have the contents of his evidents to his oath, and thereafter to pursue for the interest.
