Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Arkinleys
v.
Campbell of Glencarradale

Date: 2 December 1669

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In the above mentioned removing, pursued at Arkinley's instance as being infeft in his father's estate, which was forefaulted, upon the resignation of Duke Hamilton who was donatar to the forefaulture, against Glencarradale, as possessor of the lands of Auchattan Moglen, which was contained in his seasine:

It was alleged for the defender, That he bruiked by tolerance from Camp bell of Kilberry, who was apparent heir to his goodsire, who stood infeft in the said lands. It being replied, That the tolerance was only probable scripto;— It was duplied, That the apparent heir compearing, and owning the defender's possession, there was no necessity of a tolerance.

The Lords found, That there was no necessity of a tolerance to be produced in writ; seeing the pursuer did not allege that he or his authors had ever been in possession.

Thereafter it was alleged, That the apparent heir of Kilberry could have no interest to defend, because he could not allege that he or his predecessors had been in possession these forty years bygone; and so the right was prescribed; especially in this removing, which was a possessory judgment: but he ought to have intented a removing at his own instance. It was answered, That the pursuer not being able to allege possession, in effect the removing was only adipiscenda possessione; wherein Kilberry having as good right as the pursuer,— viz. his predecessor's seasine, which was long prior, and whereupon, in a double poinding, at the tenant's instance, he would be preferred,—he had a good interest to compear and debar the pursuer in this removing.

The Lords, before answer, ordained all parties to produce all rights which they or their predecessors or authors had of the same lands; and to condescend and prove, if any of them ever had possession in the manner thereof.

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