Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Scot of Malleny v. Sir John Gibson of Pentland
1694.
February2 and
June20.
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Feb. 2.—Arniston reported Scot of Malleny against Sir John Gibson. The Lords found, though Scot refused to debate on Sir John's declarator of molestation, and there was a protestation against him for not insisting, yet he ought still to be reponed to insist in adducing his probation as to the meiths and marches, he first paying Sir John's expenses in the cognition already taken; but superseded to give answer to the farther debate,—viz. that he had a decreet of perambulation, clearing the marches in 1620, with their answer, that Pentland had prescribed a part of that, by forty years' possession since, and the reply of interruptions, both via facti et juris, and by minorities, and by one tenant's possession of both the roums, &c. till they were farther heard.
Vol. I. Page 600.
June 20.—In the action of molestation, between John Scot of Malleny and Sir John Gibson of Pentland, it came to be debated, If it be a sufficient interruption of the prescription, that one tenant, for several years, possessed both heritors' lands. Many thought, that a joint promiscuous possession by a tenant could be beneficial to neither, nec prodesse nec obesse, and could not be counted to any of them, but subducted from the years of prescription; which is odious. But, in regard the preparative was of importance, it was ordained to be farther heard.
