A distinction made between natural possession, and by tenants.
Click here to view a pdf copy of this documet : PDF Copy
Duncan Campbell pursues the Laird of Glenorchy, for ejecting him from certain lands, and especially that his brother, by his direction, did violently cast out the pursuer's children and servants out of a part of the land laboured by himself, and persuaded and enticed his tenants to receive tacks from him, and pay the mails and duties to him, and therefore craves re-possession and double mail, as the violent profits of the whole lands during the defender's possession. The defender alleged absolvitor, because he had obtained improbation against the pursuer of all his rights of these lands, and others, and likewise decreet of removing. The pursuer answered, That the defence ought to be repelled, because the improbation was only by a certification when he was prisoner in Ireland, and the defender, by articles of agreement produced, had acknowledged the pursuer's right, and obliged himself to infeft him in the lands in question; 2dly, Though the pursuer had but possession without any right, he might not be ejected, but by a precept of ejection from a judge, which is not alleged. The defender answered, That these articles of agreement were never perfected nor extended, and could only import a personal action against the defender, for extention or implement, wherein, when the pursuer insists, he will get his answer, that he can have no benefit of the articles, being mutual, until he perform his part thereof, which is not done.
The Lords repelled the defence and duply, and sustained the ejection.
The defender alleged further, That that member of the libel, craving violent profits for that part of the land possessed by tenants, because, by the defender's persuasion, they became his tenants, is not relevant, because ejection is only competent to the natural possessor upon violence, and persuasion is no violence. The pursuer answered, That the prevailing with the tenants was consequent to the casting out of the defender out of his own house and natural possession, and was as great a fault as intrusion, and equivalent thereto. The defender answered, That the law has allowed violent profits only in ejection or intrusion, which can be drawn to no other case, though it were as great, or a greater fault.
The Lords sustained the defence, and found violent profits only competent for that part that the pursuer possessed naturally; but if the whole lands had been an united tenement, or labouring, that the pursuer had been ejected out of the principal messuage of the barony, and the ejector had thereby got possession of the whole, it is like the Lords would have sustained ejection for the whole; but this was not pleaded.
