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Scottish Court of Session Decisions >>
Douglas v M'Cubin. [1619] Mor 14732 (14 July 1619)
URL: http://www.bailii.org/scot/cases/ScotCS/1619/Mor3414732-018.html Cite as:
[1619] Mor 14732
What Title requisite to found an Action of Spulzie.
Douglas v. M'Cubin
Date: 14 July 1619 Case No. No. 18.
An executor may pursue spuilzie of the defunct's goods altho' spuilzied before confirmation of the testament, and consequently before the executor obtained possession.
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Douglas, assignee by Cuthbert M'Cubin, executor dative of umquhile Robert M'Cubin to certain grounds confirmed, and the cedent for his interest, pursues spuilzie. Alleged, he cannot allege possession nor right to the goods the time of the spuitziation, because the eight kine were poinded by a sentence against M'Cubin and the defunct, her last spouse, for his interest; and the goods were possessed by umquhile Alexander M'Cubin, her first spouse, and by her in her widowhood, and by her and the defunct her last spouse, till his decease, as their own proper goods, upon the ground of Blackcraig, whereof Alison and her spouse were tenants; likewise she possessed them as her own after the defunct's decease, to the time of the poinding, neither ever had the pursuer right or possession of the lands of Blackcraig. Replied, They could not have been poinded from her after her husband's decease, because they fell under his testament; and farther, oppones the summons, they bearing that they pertained to the executor, and was in possession in an———. Duplied, The executor had no right at the time of the poinding, in May, not being confirmed executor till July, and he would not have recovered the possession but by a pursuit, and so cannot seek spuilziation, but restitution; and if the relict had been pursued, she would have had retention of her third, which will exceed the worth of the goods poinded, and so they may be esteemed her proper goods, seeing she was in possession at the time, and 40 days before the working, useing, milking, and keeping them as her own; and the time of the poinding, none compeared to make faith that they were theirs; and the farthest that can be craved is restitution. Repels the allegeance and duply, in respect of the reply and summons, and possession therein qualified, but reserves the modification of the violent profits to the Lords.
Clerk, Hay.
Fol. Dic. v. 2. p. 389. Nicolson MS. No. 173. p. 123.
