The Laird of Wemyss v. Sir William Stuart of Gairntilly
Date: 30 January 1633 Case No. No 32.
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In an action of contravention pursued by the Laird of Wemyss against Sir William Stuart of Gairntilly, the Lords found an allegeance relevant to purge the contravention, but sustained the libel to be converted for damage and interest.
Spottiswood, (Contravention.) p. 75.*** Durie reports this case.
January 31.—L. Wemyss, younger, pursuing contravention upon this fact, viz. that after caution of lawburrows found to him, the defender had cut a great ditch and fosse betwixt the pursuer's lands, whereby he had drawn in a burn, which came within that ditch with so great violence and impetuosity, that it overflowed the pursuer's land, whereof he was heritor and fiar, and had run away a great part thereof, and was like thereby to continue and prejudge him greatly in time coming; and the defender excepting, that the said ditch was cast by common consent of the pursuer's father, who was liferenter of the lands, and of consent of this excipient, and conform to a decreet arbitral betwixt them thereanent; and the pursuer replying, that his father's consent or deed, who was liferenter only, could not be a warrant to the defender to do any deed prejudicial to him in his heritage; The Lords found the allegeance relevant ad hunc effectum, to assoilzie the defender from this action of contravention; but they sustained this action, being converted in a pursuit for reparation of his interest, and skaith sustained by the fact libelled, and for preserving of him therefrom in time coming; which the Lords permitted the pursuer to do hoc ordine, and to turn his summons into this desire, and that the defender should answer thereto now, without any process or action to be intented thereon.
Act. —— & Baird.Alt. Stuart.Clerk, Gibson.
Durie, p. 666.*** This case is also reported by Auchinleck.
The Laird of Wemyss, younger, pursues contravention against the Laird of Gairntillie for dividing the course of the burn through Wemyss's land. It is excepted for the defender, that this deed cannot infer contravention, because the same was done for fulfilling, of a decreet arbitral, whereby the Laird of Wemyss, liferenter, consented to the dividing of the said burn. It was replied, that the liferenter could not consent to any thing that might prejudge the fiar of his heritage. The Lords found no contravention, but permitted the pursuer to convert the summons in an action of damage and interest.
