Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Clerk v. The Earl of Aberdeen
1692.
November18,and
December13.
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November 18.—Sir John Clerk of Pennycook against the Earl of Aberdeen, for a house-rent in Edinburgh, from Whitsunday 1682, to Whitsunday 1683.
Alleged,—It was prescribed quoad modum probandi, not being pursued within three years. The Lords found, by the Act of Parliament 1579, he was only bound to depone if it was yet resting unpaid. 2do, Alleged, He did not possess it that year, but removed in August 1682, and never took it from the pursuer, but from the Duke of Gordon; and, on his removal, Mr. Thomas Gordon entered. The Lords thought this but a momentary and precarious possession; and yet it being hard that the landlord should lose his mail, they inclined to let him cite Mr. Thomas Gordon's heirs incidenter in this process, as they had lately in 1690 done, in Cathcart of Carbiston's pursuit against the Lady Riccarton, wherein Saminton was called pro interesse.
Vol. I. page 519.
December 13.—Sir John Clerk against the Earl of Aberdeen, for a housemail. The Lords had found it prescribed quoad modum probandi, not being pursued within three years; as observed, supra 18th November last; but the Earl alleging he needed not depone at all, whether it was resting owing unpaid, because he neither possessed as a tenant to Sir John Clerk, from whom he did not take it, nor as a subtenant to the Duke of Gordon, but was merely a precarious possessor, for a few weeks after the term, and then removed; and any right he possessed by, was by the tacita relocatio of the Duke of Gordon; and on his removing, Mr. Thomas Gordon, the Duke's writer, entered, and his possession was the Duke of Gordon's. The Lords found, that any time he possessed could not make him liable, not being warned; and assoilyied Aberdeen.
