Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. III.
Production of Titles cum Processu.
Cossindae v. Asloun
Date: 22 December 1609 Case No. No 15.
Contravention being pursued for casting peats within a man's lands, wherein he alleges himself to be infeft, he need nor produce his infeftment to instruct his summons; but it will be sufficient to produce it Cum processu.
Effect of a decree of perambulation, as a title.
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The Land of Cossindae pursued the Laird of Asloun for contravention, by casting and transporting 300 or 400 loads of pears furth of his lands of Endbut and Polflug. It was excepted, That the pursuer could have no action for any deed done upon the ground of Polflug; because his goodsire, to whom he was heir, was denuded of the property thereof, by heritable infeftment thereof, given to this Polflug's father, in anno 1557, by virtue whereof, they were in continual possession thereof; which allegeance, the Lords found relevant; because, they thought Polflug had action against Asloun for any wrong was done within his bounds, whereof he could not be relieved, neither by absolvitor or condemnator, to he given in this contravention. It was thereafter replied by the pursuer, That he offered him to prove, that this fact was committed in the Greenrisk, which was proper common betwixt his lands Endovy and Polflug, and so he had good action of contravention, notwithstanding the feu given to Polflug, from whom the defender had no right. In respect of the which reply, the Lords repelled the exception. It was thereafter excepted, That Asloun had done no wrong; because he was heritably infeft in his lands, lying in Renfrew, with Endovy and Polflug; and the part libelled, when the said peats were casten, was proper part and pertinents of His proper lands, whereof he had had peaceable passessien, past memory of man, as a part of the barony of Cluny, held by him of the Earls of Huntly. It was replied, the exception was irrelevant, as contrary to his libel; because, that the bounds controverted were part and pertinent of the pursuer's lands, possessed by him and his predecessors, past memory of man, by casting and winning peats, and debarring others; likeas, by perambulation, his lands being bounded against this same Asloun, the lands, controverted were decerned to lie within the meiths and marches of the pursue's lands. It was duplied, That the perambulation was only declaratoria juris, and altered not the possession: Likeas, a man possessing, lands by tilling, sowing, &c. albeit, by decreet of perambulation, part of the lands were found not to pertain to the possessor, yet he could not be brevi manu dispossessed from these lands, without decreet of removing were obtained against him; and, therefore, the defender's lands, marching with the pursuer's lands, and the defender' being in possession of lands controverted, no fact done therein by him, before the decreet of perambulation, could infer contravention, and the pains thereof, against him. The pursuer triplied upon his libel and decreet of perambulation, and alleged a practice betwixt Trakommy and Thomas Kerr of Cavers, when a decreet of molestation, given after the defenders of a contravention, was drawn back, and admitted to sustain the contravention, committed before the intenting of the molestation. The Lords having exactly reasoned the matter, and considered the molestation was judicium possessorum, and perambulation were petitorum; yet because the pursuer and defender were a-like stark in qualification of their right and possession in the libel and exception, nevertheless, the pursuer replying upon his decreet of perambulation, which made him to have undoubted right, and the defender to have no right to the lands controverted, they admitted the libel and reply to probation.
