Sir Archibald Sinclair and his Lady v. the Marquis of Annandale and Others
Date: 1 February 1715 Case No. No 269.
A summary complaint being insisted in before the Lords, upon a fact of intrusion, as in contempt of their authority, found not to interrupt the triennial prescription of a process of intrusion founded upon the same fact.
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The Marquis of Annandale having two expired apprisings and a decreet of preference and mails and duties against the Lady Stapleton and the Tenants; yet the Lady continuing in the natural possession till her death, and having in her lifetime disponed her right of fee to Dame Margaret Irvine her neice, the Marquis's chamberlain, after her death, came, and so far took possession in name of the Marquis that he set a new tack to the tenant; notwithstanding whereof, Irvine of Stank, Sir Archibald's factor, came and took possession of the house, whereupon he and others who had concurred, being convened in a riot by the chamberlain before the Stewart-depute of Annandale, they procured an advocation, upon which that process was sisted. But the said Stank, his wife, and others, having stopped the said tenant in his labouring, the chamberlain raises a new process of riot before the said Stewart; wherein, after probation led, and none of the defenders compearing, except Stank's wife, she was imprisoned; and the chamberlain brought other ploughs, and laboured the ground; upon which Sir Archibald Sinclair and his Lady gave in a complaint to the Lords, for breach of authority after an expede advocation. To which there were also answers given in, That there was no procedure in the particular cause advocated, which only concerned the dwellinghouse; and that as to other matters, parties were not obliged to answer summarily. But the pursuers thereafter, and when 3 years were expired, raised a new process of intrusion, violence, and oppression, &c. Where
It was answered for the defenders, 1mo, Prescription, the action not being intented within the 3 years.
Replied for the pursuers, That the prescription was interrupted by the complaint given in to the Lords, whereupon answers were superseded.
Duplied for the defenders, That a summary petition is noways equivalent to a process of intrusion, which necessarily must be intented within 3 years; for no body was obliged to answer the complaint, which appears by the pursuers raising a new process, but without the time.
Triplied for the pursuers, That by the complaints and answers thereto, the defenders were sisted in judicio as such; and the Lords ordaining the petitions to be seen and answered, did abundantly supply the want of a summons, which is only designed for certiorating parties concerned; so that the whole matter being by the complaints brought under view, did sufficiently testify the pursuers intention to prosecute their right, and was a more effectual interruption than a summons only execute.
The Lords found, That the action of intrusion libelled is prescribed as to the violent profits not being intented within the 3 years, notwithstanding of the complaints exhibited and insited in against the defenders shortly after the facts libelled.
Act. Sir Wal. Pringle.Alt. Se.Clerk, Roberton.
Fol. Dic. v. 2. 119. Bruce, v. 1. No 47. p. 60.
