Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Dr Christopher Irvin v. Elizabeth Ker and Thomas Skeene
Date: 29 July 1696
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[See the prior and subsequent parts of the Report of this Case, Dictionary, pages 331 and 332.]
The mutual bills and complaints between Doctor Christopher Irvin and Elizabeth Ker, his father's relict, (mentioned 19th Feb. 1696,) anent the summary dispossessing her family out of her house in Edinburgh, were reported. The Doctor alleged, That she had fled on the raising the criminal process of adultery and poisoning against her; and that her daughter-in-law and servants had voluntarily deserted the house; and so, there being vacua possessio, he, as heir and standing infeft, might summarily enter.
Answered,—Though, in acquirenda possessione, some corporeal act of detention be requisite, yet, where it is only in retinenda, that can be done solo animo: But here there was more, seeing she retained it by her family and servants; and, esto they had deserted it, either through terror or collusion, that relinquishing cannot prejudge her; else tenants and servants could easily betray their masters. Replied,—He offered to prove they removed voluntarily.
The Lords found, Though this were proven, it was not relevant to divest her of the possession, without her own special warrant and deed; and therefore would take no trial of the way and manner of their removing or abandoning the possession. Then the Doctor craved she might be put under caution for the rent. The Lords found, Seeing there was no process, she could not be obliged thereto.
