Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Magistrates of Invervry v. William Thane of Blackhall
Date: 5 February 1706
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The Magistrates of the Town of Invervry, and William Thane of Blackhall, raise mutual declarators of molestation, as to their possession of a muir adjacent to them both, in which the town claimed an exclusive property, and he only craved a servitude of pasturage and commonty. And a conjunct probation being allowed and advised, the Lords found the Town of Invervry had proven immemorial peaceable possession; and that Mr Thane's witnesses had, at the furthest, only proven thirty-five years'; and the Town had proven frequent interruptions: and therefore decerned in favour of the Town's right, and assoilyied them from the other's declarator, and modified 100 merks of expenses, to be paid by him to the Town, as temere litigans and calumnious. Against this interlocutor he reclaimed by a bill, representing that his witnesses would have proven forty years' possession, but the probation being on a commission, they were examined at the said burgh, where the town-clerk and others dashed and concussed his witnesses, so that they had not the freedom witnesses ought to be in; and therefore craved a reexamination, either before the Lords themselves, or at Aberdeen by the sheriff, as both indifferent in the place and person. And for the interruptions proven, they were not in the terms of law, neither by way of summons nor instrument registrate; et aliquid non omnino fieri, et non legitimo et habili modo fieri, eequiparantur injure; whereas there is nothing here but the petulant and momentary interruptions of herd-boys driving off their neighbours' goods; which is no more than if a stranger going by had hounded them off. And, in anno 1619, his predecessors threw down a dyke the Town were building there. And it is evident there can be no expenses decerned against him, seeing he had probable grounds of pleaing.
Answered,—His witnesses were not overawed by any; and such allegeances cannot be received now in a concluded cause; and interruptions via facta are never refused; and who knows better their master's bounding than herds? and, allowing that deed of his author's, there is eighty years' prescription run since 1619.
The Lords refused the bill, and adhered to their former interlocutor.
