Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Walter Hay
v.
Lady Borthwick and her Tenants

Date: 31 Jan 1627

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In a removing, pursued by Walter Hay against the Lady Borthwick and her tenants, from the lands of Cathcune; it was alleged by the Lady, that she could not be compelled to remove, because she was infeft, 1615, [1ong before the pursuer's comprising, 1621,) and in possession two years—at least the one. Replied, That he was in possession ever after his comprising, by setting the lands to tenants, and taking up the mails, till that, 1623, in the evil years, the tenants having left the room, she intruded herself in the possession. The point of the question ran upon this, Whether her vitious possession by intrusion, intervening between his comprising 1621, and his sasine, which followed not till Whitsunday 1626, (for if no medium impedimentum had fallen in, the sasine would have been drawn back to the comprising,) could defend her in that judgment? Which the Lords found it should; because, she being infeft, and having once apprehended possession quomodocnnque, it was enough to maintain her therein, in possessorio: And as for the vitiousness of her possession, there was an ordinary action to help it, to pursue her for intrusion.

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