In an action against a wadsetter, of a part of lands that had a moss in common, for restricting the wadsetter's interest in the commonty, process was sustained against the wadsetter, although the reverser was not called But the reverser's interest could not be prejudiced.
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In an action pursued by Irving, who was heritable proprietor and co-portioner of a land, which had a moss belonging to the whole land, against one Forbes, who was infeft by a base infeftment in another part of the same land, with liberty of the said moss, to be holden of the annalzier, and under reversion; to hear it found, that his liberty of the moss should be restricted to the proportion of the land wherein he was infeft, and that he had no liberty in the said moss, but effeiring to the land, as it answered in proportion, as a part compared with the whole land; The Lords sustained this process against this wadsetter, albeit the heritor who was standing infeft holden of the superior, and who granted the wadset under reversion only, was not called to the pursuit, to which they found no necessity to call him; but the Lords found and declared, That what should be done betwixt these parties in this process, should not prejudge him.
Act. ——.Alt. Baird.Clerk, Scot.
Durie, p. 53.*** Haddington reports the same case:
Irving pursued Mr James Forbes to hear and see him decerned not to take any more of the peats of the barony whereof they were portioners, nor effeired to his portion for the use of the inhabitants of his part of the barony. Mr James Forbes alleged, That he was only infeft under reversion, and so Blaikburne, his author, should have been called; without whom, no restriction could, be imposed upon his land. It was answered, That the pursuer knew Forbes to be infeft, and to have done him wrong, but he could not prove whether he was infeft redeemable or irredeemable, and so could pursue none but him who was infeft, and wronged him; not his author.
The Lords found relevant; and declared that nothing done betwixt these parties should prejudge Blaikburne or his superiors, otherwise nor accorded of the law.
