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Scottish Court of Session Decisions >>
Earl of Argyle v M'Naughtun. [1674] Mor 13889 (16 July 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor3213889-129.html Cite as:
[1674] Mor 13889
State in which the person who removes is bound to leave the property.
Earl of Argyle v. M'Naughtun
Date: 16 July 1674 Case No. No 129.
A man being decerned to remove himself, cottars, &c. was found liable in violent profits for not removing sub-tenants.
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The Earl of Argyle having obtained decreet of removing against the Laird of M'Naughton to remove from the Forest of Kenbowie, pursues for violent profits since the warning. The defender alleged, Absolvitor, because that albeit violent profits be due after warning by tenants, when they violently refuse to render the possession that they have received, to their master, yet when a warning is used by one that is not in possession, albeit he obtain his right declared thereafter, or by reduction remove the defender's title, he will not obtain violent profits from the warning; and, in this case, the defender having excepted upon prescription founded upon a sasine granted to one of his predecessors, which the Lords did not sustain as a title of prescription, because there were not alleged sasines following one another for 40 years, or at least that one person had bruiked by one sasine by the space of 40 years, as the act of prescription requires; yet that being a dubious point, never before decided, had just reason to detain the possession, and so should be free from violent profits, which being penal, should not have effect, ubi est justa causa litigandi; 2do, As to the profits after sentence, the defender removed himself; and albeit he removed not his tenants, it was the pursuer's fault, who warned them not. It was answered, That the defender was not found to have either right or title for prescription; and his pretence upon the act of prescription was found groundless, it requiring not only 40 years possession, but either a charter or precept of clare constat, or at least sasines one or more, standing together 40 years; neither was the pursuer obliged to know or warn the defenders, sub-tenants, or cottars; but he oppones the decreet of removing, bearing, the defender to remove himself, sub-tenants, and cottars, &c.; neither did the defender make void the possession, or offer it to the pursuer.
The Lords repelled both the defences; but declared, that at the modification of the violent profits, they would take to consideration, what probable ground the defender had to defend, in so far as concerned the profits as violent, above the ordinary profit; and, in respect of the tenor of the decreet of removing, found the defender also liable for the violent profits after the decreet of removing, but prejudice to the defender to have recourse against his sub-tenants, if any did possess.
