Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
David Ogilvie of Popilhall v. Sir Andrew Ramsay
Date: 2 July 1700
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Mr David Ogilvie of Popilhall pursues Sir Andrew Ramsay in a declarator and molestation, for encroaching on a piece of ground and haugh adjacent to his mill; and, for his active title, he produces, besides his general infeftment, a decreet-arbitral, pronounced on a submission between John Hepburn of Waughton, then heritor of Pophill, and the pursuer's father in 1647, adjudging that ground to him.
Alleged for Sir Andrew, That, since the date of that decreet, he has prescribed a right of commonty and pasturage, by forty years' possession; which he offers to prove. 2do. A decreet-arbitral is but a personal right, and can only militate against the party-submitter and his heirs; but Sir Andrew is a singular successor to Waughton by apprisings, and so the decreet cannot meet him.
Answered to the first, There can be no prescription in this case, 1mo. Because the pursuer offers to prove he was minor many of these years, which must be discounted; 2do. His mother liferented the lands till of late, which must also be deduced from the prescription. And, as to the second, If Sir Andrew instructed property by tilling, or other such deeds, there must be some pretence that the decreet-arbitral could not exclude him; but all he claims is only a commonty and servitude of pasturage, as to which the decreet-arbitral is sufficient against him.
Replied for Sir Andrew,—That he cannot plead the benefit of his minority, seeing he does not represent his father, but, being charged, has renounced to be heir to him; and, upon an adjudication so led, he bruiks the lands, and so he must be reputed as a stranger; and it should be the adjudger's minority, and not his. And, as to the interruption by the liferent, he was still valens agere, seeing a fiar may pursue a declarator of right, though he be not actually in possession.
The Lords repelled Sir Andrew's defences; and declared in favours of the pursuer, conform to his decreet-arbitral.
