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Scottish Court of Session Decisions >>
Herries of Braikoch v The Earl of Nithsdale. [1696] 4 Brn 332 (27 November 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040332-0710.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Herries of Braikoch v. The Earl of Nithsdale
Date: 27 November 1696
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Philiphaugh reported Herries of Braikoch against the Earl of Nithsdale, being a pursuit on the warrandice of a charter, granted by one of the Earl of Nithsdale's predecessors to the pursuer's grandfather, of thir lands, in 1592: upon the precept of seasine therein contained, he infeft himself by virtue of the Act of Parliament, 1693, allowing such to complete on serving heir, for preventing the expenses of pursuing an implement.
Alleged,—He could not be liable in warrandice, because prescribed, nothing having followed on it for double prescription.
Answered,—They possessed, by virtue of that charter, for many years, till the pursuer's mother, in his minority, was turned out; and, since that dispossession, the prescription has been interrupted.
The Lords found sundry nice questions would arise, as, if possessing by a charter alone, without a seasine, would produce and infer prescription, for we say nulla sasina nulla terra; and if the old transumpt of a seasine be produced in his grandfather's person, wanting the words of the attest, vidi, scivi, et audivi,
may not be a good and sufficient right to defend him now, the nullities not being objected within the years of prescription. The Lords ordained the case to be heard in their own presence.
