Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Lord Belhaven
v.
Lord David Hay of Beltoun

Date: 7 February 1706

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The Lord Belhaven having pursued Lord David Hay upon the Act 17, Parl. 1669, for adjudging a part of the defender's neighbouring lands of Beltoun to himself, to make an inclosure regular: it was alleged for the defender, that there was action formerly raised before the Justices of Peace upon the same account, which is not yet discussed; and therefore no new process can be sustained before the Lords, till the ish of that lis alibi pendens; there being no way to bring a depending process from an inferior judge to a more sovereign court, but by advocation. 2. No process at the pursuer's instance, in respect he has produced no title in his person to the lands he is inclosing: and the act of Parliament ordains, that in lieu of the lands adjudged to the heritor making the inclosure, an equivalent piece of his land be adjudged to the other party. So that this being a petitory action, it ought not to be sustained without production of the pursuer's title in initio litis, more than actions of molestation, or for dividing of commonties or runrig, are sustained without, an active title produced with the summons.

answered for the pursuer,—There is no lis alibi pendens here, seeing the process before the justices was deserted before litisconstestation. Besides, there are no Justices of Peace in effect now in being in Scotland, since the old set were exauctorated by King William's death, and the expiring of the last Parliament; and no new ones have been appointed since her Majesty's accession to the throne. 2. Possession without any more is a sufficient title for commencing such a process, and carrying it on the length of a visitation: though when the Lords come to adjudge, the defender will have interest to see the pursuer's right to the equivalent land to be adjudged. And yet even then there is no hazard: for an heritor afterwards emerging, could not be heard to claim, upon a better right, the lands adjudged from the defender, without quitting his ground inclosed. And it may fall out that of the two alternatives provided by the act of Parliament as a recompense for the ground taken off to make the pursuer's dike run in a straight line, viz. The equivalent in ground, or the value in money, that the defender choose to have money: in which case there will be no need for producing the pursuer's right to his lands. But yet he is content to produce his charter and seasin cum processu.

The Lords repelled the first dilatory defence simpliciter, and repelled the second; the defender producing his infeftment cum processu. And appointed the Earl of Lauderdale, Justice-Clerk, Fountainhall, and Prestonhall, or any two them to visit and perambulate the ground, and to take trial of the value of what is sought to be inclosed, and how it might be done with the least inconveniency to Lord David Hay, and what compensation should be given to him in land or money.

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