Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Hugh M'Leod
v.
Rorie Dingwall

Date: 3 February 1673

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Hugh M'Leod having obtained decreet against Rorie Dingwall, for the profits of a ferry-boat and fishing, in anno 1657, the decreet is now craved to be. reduced, on this reason, as being null for want of probation, in so far as the quantities were not proven. It was answered, That, the duties being specially libelled, and defences proponed, without denying the quantities, the pursuer was thereby liberated of probation; and yet he is willing, in fortification of his decreet, to instruct the same. It was replied, That the decreet being null, all defences in causa might now be propounded; the decreet, at best, being but to be sustained as a libel. And it was offered to be proven, that the defender was then seven years in possession, by virtue of an infeftment, and so would exclude the pursuer in judicio possessorio; which cannot be repelled as competent and omitted, seeing the decreet is null. It was duplied, That this defence, being doloseomitted, cannot now be received after sixteen years' time, that the means of probation of interruption hath failed. The Lords found that the decreet might be astructed as to the quantities, without admitting this defence upon the possessory judgment, after so long time; seeing the defence related more to the point of possession than to the point of right.

Vol. II, Page 164.