Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Lady Cardross v. The Earl of Traquair
Date: 29 July 1696 Case No.
No 697.
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Phesdo reported the Lady Cardross against the Earl of Traquair, who defended himself with the benefit of a possessory judgment, by virtue of apprisings, and other singular titles in his own and his mother's person. Answered,—That to make a legal possessory judgment, besides a colourable title, there was likewise requisiste bona fides, and lawful possession; but here the Earl's possession was plainly vitious; for his mother and he had intruded themselves into the possession in her brother's minority, by the negligence of his tutors; and the vitia possessionis are known in law to be when the entry is either vi, clam, aut præcario. 2do. It was interrupted by a decreet obtained by Lady Halton, the other co-heir, against the Earl for her half.
The Lords consided this possession was not precisely for seven years, but had continued more than double that time, How far an interruption at the instance of one co-heir will operate for another, (from which point they abstracted at this time,)—seven years had run even since that interruption; and therefore they inclined to sustain the possessory judgment. But, at the intervention of some of the Lords, it was delayed till November.
