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Scottish Court of Session Decisions >>
Patrick Keith v Laird Lesmore, Troup, and Others. [1666] Mor 16153 (14 July 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor3716153-017.html Cite as:
[1666] Mor 16153
After conclusion of the cause in a reduction, found that it could not be advised till the representatives of some of the authors, who died pendente lite, were called.
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Patrick Keith having right of wadset, granted by the Earl of Marischal, pursues a reduction against the Laird of Lesmore of a certain posterior right, granted by the Earl to him; which right was disponed to Muiresk, who was infeft; and disponed to Troup, who is present heritor; who being all called, and litiscontestation made, and the cause concluded, at the advising thereof, it was alleged for Troup, That Muiresk was dead, and there could be no advising of the cause till some representing him were called; for as in initio, there could be no process against Troup, the present heritor, till Muiresk, his author, were called, so neither can there be any procedure now till some representing him be called. It was answered, The pursuer declares that he insists against Lesmore's right principaliter, against which only the reasons are sustained; and as for Muiresk and Troup's rights, they will fall in consequentiam.
The Lords found, That the process behoved to be transferred against Muiresk's apparent heir before it could be advised; for as the declaring that the pursuer insisted principaliter against the first right, would not have been relevant ab initio, seeing the law allows all mediate authors to be called, that they may defend the right, whether the reasons be libelled against their rights or their authors', which comes in the place of the old custom, of sisting process until the defender's warrant were called, and discussed, so every author has alike interest to object against the reasons, although libelled principaliter against the first author's right.
But the Lords declared, that seeing the defender made this unnecessary delay, they would be more favourable in drawing back the reduction, ad litem motam, aut contestatem.
