In what manner competent to prove part and pertinent.
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In an action pursued by the Master of Jedburgh against one Elliot, for the violent profits of certain rooms, which were not per expressum contained in the decreet of removing, but libelled in this action of violence to be parts and pertinents thereof; the defender compeared, and alleged them to be pertinents of his proper lands, heritably pertaining to him; and both the parties alleging possession, as pertinents, the Lords found, that witnesses should be examined for either of the parties, to prove how they and their authors possessed these rooms controverted, whether as pertinents of the pursuer's lands, contained in his decreet of removing, or as the defender's proper lands; and, after the witnesses were examined for either party, they would consider what was expedient.—This was thereafter altered.
Act. Hope.Alt. Nicolson.Clerk, Gibson.
Durie, p. 53.*** Haddington reports this case:
The Master of Jedburgh pursued Gilbert Elliot for the violent profits of certain lands, as parts and pertinents of the pursuer's lands of Fernlie. The defender alleged, That they were parts and pertinents of lands wherein he was infeft, and in possession these 30 or 40 years. The defender replied, That Hector Turnbull of Stanclege, to whose right he succeeded, had wadset the lands to the defender, before which wadset, Stanclege, and his authors, had been in possession of the lands controverted 30 or 40 years, which possession, he who had received the wadset could not invert; and, therefore, the possession being equally qualified by both parties, the pursuer should have the prerogation of probation; which desire the Lords would not grant; but appointed both the parties to have equal number of witnesses, whereof the most part should be landed Gentlemen.
