Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Patrick Bruce and William Wallace
v.
Robert Bruce

1628. November 21and 26.

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In ejections, it is sufficient to libel that the defender ejected was mailler, even to him that produced no right, so that he prove that he paid mails and duties to him before the ejection, prout de jure, or that he conditioned to pay mails and duties, before the ejection; which condition the Lords only sustained to be proven by writ.—21 November 1628.

In the said action, it was excepted by the said Mr Robert Bruce, That the said William Wallace, pursuer of the ejection, took a tack from Robert Bruce, son to the said Mr Robert, from Martinmas till Martinmas, and, after Martinmas, removed voluntarily, and took his haill goods and gear off the ground, and so Mr Robert did no wrong to enter to the void possession; for, otherwise, he behoved to let the lands ly lea, and would have wanted a year's duty. The Lords found this exception relevant, the first part thereof being proven scripto vel juramento partis, and the last part prout de jure, except the pursuer reply upon some violent deed committed in the ejection.—26th November 1628.

In the same case, it was alleged by Mr Robert, No repossession nor violent profits can be craved by the pursuer of the ejection; because he offered him to prove he lawfully warned the pursuer at Whitsunday 1625, and obtained decreet of removing against him, and orderly removed him. The Lords found that the defender was neither subject to repossess the pursuer, nor pay the profits of the room after the warning and decreet of removing following thereupon.—26th November 1628.

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