Scottish Court of Session Decisions

Subject_1 EJECTION.

Laird, of Collision
v.
The Earl of Errol

Date: 3 June 1575
Case No. No 2.

Ejection was sustained, although there was no violence done to the pursuer's person or family, but only the house blocked up, and sustenance for man and beast stopped from coming in to him, so that he at length left the house.

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The Laird of Colliston persewit the Earl of Errol for ejecting him furth of the lands of Colle, and obtained decriet upon him; and thairafter callit him continuallie in the Justice Aire of Aberdeen in anno 1534; but the matter being agried be the Earl of Morton, Regent for the time, the said persewar enterit thairto again be vertew of the Regent's decriet-arbitral given betwixt them; and the defendar commandit to abstain fra farder molestation; but when the persewar had no corne, stray, nor no kind of (sustenance) he was constrained to seek among friends to furnish his bestial for to labour the ground, and because it was winter, there was na grass, and thairfore it behovit him to purchase hay. Notwithstanding, this defendar, by his promise and appointment, contained in the decriet-arbitral, whilk was that he sould not molest nor trouble, but suffer the persewar to enter, use, occupy, and labour his lands, came with ane company of men bodin in fear of weir to the Laird of Colliston's houses and biggings, and destroyit all kinds of stuffs and (sustenance) both of men and beast, that he could apprehend, and sindrie times raid and repairit about the house to the effect to stop all kind of stuff fra him, or his guids, that was necessar for them, and if they fand any thing bringing to him, they took, destroyit, and consumit it, manner foresaid, and took the furnishers knifes, swords, and plaids, frae them, and struik them with bluidy straiks, and boistit them, that if ever they did the like again, they wald hang them.—This form of oppression continuit thirteen dayis and nights continuallie, throw the whilk, the persewar, his familie, and servants, with bestial, was compellit to leive the lands of Colliston, and house thairof waist, and so to desist and ceis fra labouring, manuring, and occupying thairof; heirfore the persewar calls the said Earl for the hail profits, that he might have had of his lands, if he had peaceablie bruikit them, but trouble made be the Earl and his complices, as was at lenth contained in the libel of ejection and violent spulzie. The Earl allegit he could not get the hail profits, as was libellit, for such thing had never been in use nor practic before, viz. that ejection sall be decernit upon such form of troublance as said is, whilk allegeance of the defendar the Lords repellit, and referrit the libel to the persewar's probation as very ejection. Thairfor the Earl allegit, That this action was already depending before the Lords of Secret Counsale, litiscontestation made, and witnesses receaved, thairfor it could not be callit before the Lords of Session. The persewar allegit, That it was not eodem modo agendi, for the action depending before the Lords of Secret Counsale was be ane supplication for diverse points of oppression and injurie committit and done be the defendar to him, whilk defendar had denyit, the same was given to the persewar's probation, whairin witnesses being receaved, and the matter proven, order might be put thairto. And as to this action, it is of another nature, and other manner persewit before the Lords of Session, whilk is for the violent ejection of the persewar out of his lands, as is contained in his libel, and for the profit that he might have had if the Earl and his complices had not molested, troubled, and ejected him, as said is; and also the persewar to be restored to the peaceable possession again, and the Earl to be decernit to ceis frae all farder troubling; and so the two actions are of diverse natures, and so the other sould not make impediment or derogation to the other action; whilk allegeance the Lords fand relevant, and repellit the Earl's allegeance, and admittit the persewar's allegeance to his probation. Memorand. This action was persewit in June, the summons raisit in March, and so lang before the time, that all cornes was sawn, for the whilk cause he callit; yet it was fund sufficientlie to convict the defendar, for the profits of that year alswell to be sawn as alreadie sawn before the troubling and molestation. Hoc in fructibus artificialibus, nan itaque in naturalibus.

Fol. Dic. v. 1. p. 252. Colvil, MS. p. 245.