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In a removing betwixt ——— contra M’Kenzie, the pursuer desiring removing from her terce, whereto she was kenned and served; and the defender alleging, that he bruiked the two parts with the third pro indiviso, and he could not know what was the pursuer's third, to the effect he might remove therefrom, seeing all the whole lands were mountains, and grass-ground, and not arable lands, whereby the terce could be known by itself, which cannot be in this case, where all is grass and pasturage; the Lords repelled the exception foresaid, of occupying pro indiviso; but the Lords found, That if the defender would offer obedience to remove from the third, that then they would grant commission, either to the Sheriff, or to some Ordinary Judge, either to stent the whole lands, and the holding thereof, that the pursuer might have the third part of the sowms, and the right of pasurage upon the lands proportionally, conform to the relation of the two parts, so that the defender should hold no more goods thereon but according to the two parts of the sums whereto the whole lands should be extended, that the pursuer might have liberty, as said is, to pasture according to the proportion of her terce; or else, that the whole lands should be mett and measured by the said Judge, and that the third part thereof should be laid apart to the pursuer, for her terce, to be used by her at her pleasure, and that the defender should have no more but the quantity of the two parts of the lands, being justly mett, as said is; and which trial the Lords found might be taken in this same action of removing, if the defender did offer therein obedience to remove.
Act. Gibson.Alt. Mowat.Clerk, Gibson.
Durie, p. 330.
