Scottish Court of Session Decisions

Subject_1 REDUCTION.

Earl of Wigton
v.
Earl of Cassillis

Date: 5 March 1630
Case No. No 26.

Found sufficient for the pursuer to prove cum processu, that his author had been infeft.

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In an action of reduction and improbation pursued by the Earl of Wigton against the Earl of Cassillis, for reducing of all rights made by the pursuer's predecessors to the defender's, of the lands of Lenzie and Thankerton, the pursuer libelled his interest as heir to John Lord Fleming, his grandfather, who had right to the lands libelled by disposition of James Lord Fleming his brother, the pursuer's grand uncle. Alleged, No process, because the pursuer shewed not where ever James (who disponed the lands libelled to John bis brother) was infeft. Arswered, Offered to prove it cum processu. Replied, He could not, it being a part of his interest, but he should have verified it in in-gressu litis. “The Lords sustained it to be proved cum processu, but before the defender should be obliged to produce, ordained it to be done;” for if that had not been shewn, the pursuer could have had no interest to call for the defender's writs. The same answer was given to another allegeance, that he shewed not where that James was heir to malcolm Lord Fleming, who was author to the Earl of Cassillis.

Next alleged, no process, because none was summoned to represent that James Lord Fleming, or Malcolm one of his predecessors, author to the defender, who would be obliged to warrant the defender. “The Lords found, that there was no necessity for the pursuer's summoning any who be obliged in warrandice to the defender, or know them;” but that the defender himself, if he pleased and knew of any such, might intimate the plea to them.

Spottiswood, (Regality.) p. 271.

*** Durie's report is No 38. p. 6633., voce Improbation.