Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VIII.
Mala Fides induced by Process, whether it will take place from Citation, Litis-contestation, or Decree.
Lord Justice Clerk v. The Feuers of Coldinghame
1666.
January. Case No. No 35.
The Lords refused to sustain process for bygone duties payable out of the defender's lands, where the pursuer had not been in possession, but kept his process in agitation for a great number of years. It was sustained only from the last wakening.
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The Lord Justice Clerk and bis predecessors being infeft in certain lands, together with the office of forrestery within the abbacy and lordship of Coldinghame, and in certain duties yearly, namely a threave of oats out of every husband land for the office, pursues a declarator of his right against his vassals and tenants, and for payment of the duties bygone, and in time coming. It was alleged by some of the vassals, That they ought to be assoilzied; because they and their predecessors were infeft by the Abbots of Coldinghame, lawfully confirmed, conform to the law, in their lands, free from any such burdens; whereas any infeftments granted to the pursuer or his predecessors, were either posterior to theirs, or if prior, they were not confirmed before the defenders predecessors their infeftments were confirmed. To which the pursuer answered, and opponed his predecessors infeftments clad with possession, at least whereupon he and his predecessors had, from time to time, used citations, and done diligence, against the vassals, so that his right was not prescribed: And there was no necessity to say, that his predecessors were confirmed, 1mo, Because the lands and office held, of old, ward of the Abbot, and there was no necessity of confirmation in ward holdings. 2do, Though that they held feu, yet this being an office, no act appoints confirmation of offices, which, even without sasines, may be granted and transmitted; but only of feu lands.
The Lords found no necessity of confirmation upon both the grounds foresaids, or either of them. See Ward.—Sasine.
In the same process, though there had been many summonses raised, as in anno 1600, 1621, 1627, &c. yet the Lords would not sustain process for any by-runs, but only since the wakening now insisted upon was last raised, which was only within these three or four years; in regard he nor his predecessors had never been in possession, at least since the intenting of the said processes, and had never obtained any decreet.
