Scottish Court of Session Decisions

Subject_1 CITATION.
Subject_2 SECT. XV.

Citation in Declarator of Escheat.

John Johnston
v.
William Napier

Date: 7 December 1609
Case No. No 58.

The heirs and executors of a defunct rebel must be called to a special declarator; but if they concur without citation, it will be sufficient.

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Mr John Johnston donatar to the escheat of Nicol Uddart pursued William Napier to hear and see a decreet-arbitral pronounced betwixt the saids Nicol and William reduced. It was alleged, That no process should be granted, because the pursuer had not libelled, that he had obtained declarator upon his gift; which allegeance was found relevant, while it was taken away by a reply, that he had obtained declarator, which was produced in process. Thereafter it was alleged, That no process should be granted, because all parties having interest were not called, viz. the heir, the relict, and the bairns of the said umquhile Nicol, who had right to his goods. It was answered, That his heir and relict were called to the declarator, it was not necessary to call any others. The Lords found it was necessary to call the bairns, who would have fallen executors: And thereafter the pursuer offering to cause them concur, the Lords sustained the concourse, he producing a special mandate.

Fol. Dic. v. 1. p. 137. Haddington, MS. No. 1685.