What Title requisite in the Positive Prescription.
Subject_3 SECT. I.
Title requisite to Purchasers of Land, and to Adjudgers.
Cumming v. Irving
Date: 19 November 1680 Case No. No 80.
Found that extracts of sasines could not be a title for prescription.
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Cumming of Cowtter being infeft in the lands of Cowtter, with the salmon-fishing of the water of Dee on both sides, adjacent to his lands, pursues improbation and reduction of all rights to the salmon-fishing in the said water, and craves certification contra non producta. The defender alleged, No certification, because he produces extracts of his father's and grandfather's sasines of the lands of Kincousie, and the salmon-fishing upon the water of Dee, which lands are opposite on the other side to Cowlter, and offers to prove forty years possession, by virtue of these infeftments, with his own infeftment produced.——The pursuer answered, That the extracts of sasines could not satisfy the production in improbations. 2do, Even the principal sasines are no title for prescription by the act of prescription 1617, unless they had proceeded upon retours, or had a charter or precept anterior to forty years possession. The defender replied, That the pursuer's father having married his mother, his father being killed in the King's service when he was an infant, many of his writs were amissing, and it is likely his writs might have been abstracted by his step-father to carry this fishing, and therefore he had raised and executed a probation of the tenor, desiring therefore that no certification should be extracted, till he might conclude the tenor.
The Lords found, That the extracts of the sasines could not satisfy the production in the improbation, nor could they be a title for prescription, and therefore granted certification, superseding the extract till July next, that the tenor might be closed, and ordained the same to be taken in incidenter in this process.
