Communi Pastura. - Species of Money. - Moris, Maresiis. - Free Rent. - Valid and Sufficient Infeftment. - Debts real and true. - Cum Piscationibus.
Laird of Dundas and His Son, v. Elphingston and His Tutor
1585.
February. Case No. No 1.
The clause, cum communi pastura implies no more than liberty to pasture on one's own property, not on any adjoining commonty, unless the clause be in verbis dispossitivis.
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The Laird of Dundas and his Son, pursewed the air of Mr Michell Elphistoun and Al. Home of North Berwick, his tutor for his interest, for molestation made within the Mains of Arnestoun, pertaining heritably to the said Laird and his Son, and qualified the molestation be pasturing of their goods upon the said lands. It was excepted, That the said John Elphiston's father, Mr Michell, was infeft heritably in all the pendicles of Arnestoun cum communi pastura, and by virtue thereof, he and his predecessors had been in possession in all time by-gone, the whilk was as sufficient as if he had been infeft with a special title. It was answered, That the words, communi pastura, could give him no action, nor make him no right, except it were exprest in verbis dispositivis of his charter cum relatione in alio vel ad aliud, as we say, with common pastures in such a part in such a muir, wood, or part of ground; for every charter commonly has the words, communi pastura, after the general words and clause that are contained into a charter after tenend. et habend.; for, that this common pasture can be judged no other thing, but everie man to have free liberty to pasture within himself. It was reasoned on the other part, That the words, communi pastura, behoved to work something et hoc quod commune est cum alio commune quia unicuique sua res propria est, nec sibi servit. The Lords repelled the exception, and fand, that the words cum communi pastura, could work nothing to infer any common pasture in another man's ground, except they were in verbis dispositivis.
