Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685.
James Gordon, Parson of Banchorie, v. Sir Alexander Bannerman of Elsick
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February 24.—Mr James Gordon, parson of Banchorie, pursues a reduction of a decreet in foro, obtained against him by Sir Alexander Bannerman of Elsick; finding that Sir Alexander had the sole right of property and pasturage in the Hair-moss, by virtue of his lands of Cuckston, and that Mr James and his tenants of Airdoch had no right; which was carried by the late Chancellor's moyen.
The reasons of reduction were,—1mo, The decreet was ultra petita; for Eisick's summons craved but common pasturage; and there being more given him on the Lord's advising, they cutted the summons and scroll of the Act, and interlined the Bruntland beside the Cowford, to make it meet the decreet. 2do, Mr James had produced a decreet of perambulation in 1630; and yet it was not considered. 3tio, The decreet proceeded only upon half advising, and half probation, viz. only of Elsick's witnesses, and not of Mr James's; and only one of them was positive; and yet he deponed he saw them in possession of casting of peats, when, by calculation, it appeared he was then but five years old.
The Lords, having advised the debate, before answer, ordained the summons and acts to be produced; and remitted to the Ordinary upon the witnesses, to take the oaths of Mr George Bannerman, Alexander Deuchar, agent, and the extractor, or any others whom the pursuer shall condescend upon, anent the alteration of the libel, and when it was; if, after litiscontestation, or after sentence, and upon any other pertinent interrogatories to be given in by either party. Vide 6th March 1685.
Vol. I. Page 343.
March 6.—The case of the Parson of Banchorie against Elsick, mentioned 24th February 1685, was advised. The Lords found, by the deposition of Alexander Deuchar, That the summons and act have been altered, vitiated, and interlined; and the words, “Muir and Moss” added: and therefore they loosed Elsick's decreet, and appointed Boyne, Kemnay, and Carse, to visit the ground, and to take all cognition they think fit, by witnesses, &c. anent the property or commonty therein, and to report betwixt and the 1st of November; and, in the mean time, to endeavour to settle the parties. Mr James Gordon, on a bill, got Drumcairn added.
