Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Scott of Sinton v. John Grieve of Pinackle
1692 and
1693.
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1692. Nov. 18.—The Lords repelled the first reason of reduction of the Sheriff's decreet, that he had declined him, in regard he dwelt not within the jurisdiction; not so much on account of the first answer, that although he dwelt extra territorium, yet the land in question lay within the shire; nor of the second answer, that he had passed from his declinator by compearing, proponing defences, and deponing; for it was thought if any wrong was done, his compearing did not so homologate but the decreet might be turned into a libel. But it was repelled in respect of this third answer, that he was cited by the Lords' letters of supplement, which were ordained to be produced; though some alleged supplements can only be for citing parties for their interest, but not principal defenders. As to the second reason of reduction, viz. That the third part, possessed by him, was after mensuration of the whole; and though the marches were set in his own assertion, and so ubi mensor falsum modum dixerit, it should be rectified; yet that it had been so divided three years before; relevant to assoilyie him from all bygones of the excress of one hundred pound Scots, which his third part was proven to be better worth than any of the other two parts, as a bona fide possessor; he proving it was, conform to that division, made three years before his tack; and that he made offer of any of the parts Swinton the heritor pleased to choose.
Vol. I. page 519.
1693. February 9.—The Lords thought there was unfair dealing in Grieve's measuring the land, and that mensor tenetur de dolo si falsum modum dixerit; yet, in regard of the former interlocutor, 18th November, 1692, they assoilyied him from the excrescent duty preceding the citation, as fructus bona fide consumpti.
