Scottish Court of Session Decisions

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

Captain Ross
v.
The Earl of Nidsdale

Date: 14 January 1673

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Captain Ross being infeft in the Castle of Dumfriece in anno 1654, and in possession till the year 1657, did pursue the Earl of Nidsdale for intrusion, and to repossess him, and for the violent profits.

It was alleged for the Earl, That the said house being garrisoned, by order of the Council, with a party of the king's forces, upon their removal, he did enter to the possession, which was vacua possessio; and he, standing infeft in the house, was not obliged to repossess the pursuer, seeing he had a full and perfect right thereto, and was content instantly to debate his right with the pursuer, whose right did only flow from the deceased Earl of Nidsdale, who was denuded by comprising.

It was replied, That the pursuer, not having voluntarily quit his possession, but only in obedience of a public order, he did retain the same until that impediment should be removed; which was in law sufficient against any allegeance of vacua possessio.

The Lords did sustain the action for repossession; and ordained, that, ante omnia, he should be restored to the possession, reserving to both parties to debate their rights as accords.

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