Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Cochrane of Ruchsoles
v.
Enterkin, Carleton, and Others

1678 and 1680.

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1678. February 2.—There is a reduction and improbation pursued by Cochrane of Ruchsoles, as heir to his father, (who had apprised some lands in Galloway and served inhibition,) against Cathcart of Carleton, Enterkin, Sir John Cochrane of Ochiltrie, Hugh Wallace, writer to the signet, and the other possessors of the apprised lands.—See thir parties, 6th November 1680. Vide supra, numero 681, [page 207.]

Alleged,—They would not take a term to produce to him; because they offered to prove they stood infeft publicly and in possession, and, he nor his father not being infeft, he could not force them to produce their rights whereon infeftment had followed.

Answered, 1 mo,—Ought to be repelled, because a dilator not verified. 2 do, He had charged the superiors with horning to infeft him, viz. my Lord Cathcart, &c.; which was equivalent. (This horning the defenders contended, though it was sufficient in an action of maills and duties, yet not in an improbation. Vide thir same parties, 24 th July 1678.) 3(io, In an improbation, they behoved once to produce, and then debate on the validity of their right; though, in a naked reduction, they would not, (unless they immediately secluded him by production of a better right.)

Reidfurd ordained them to take a term.

Next, alleged, Their authors were not called.—We desired them to condescend, and they should be cited to the same term.

This answer was sustained as relevant.

Advocates' MS. No. 720, folio 318.

1678. July 24.— In the reduction pursued by Cochrane of Rochsolls against Carleton, &c. (2d Feb. 1678;) they having given in a condescendance upon their authors in the lands, it was alleged no respect could be had to the said condescendance, because severals of them were not designed, and they might as well give in the names of jockeys and vagabonds, or forge names; and it was not sufficient to condescend on the shire where they lived, but at least they behoved to tell the parish, that if there were no such person dwelling there, they might get a testificate from the minister and elders thereon, or might at least cite him at the market-cross of that shire.

Vol. I. Page 11.

1680. November 6.— In the improbation, Mr William Cochran of Ruchsoles against Enterken and others, (24th July 1678,) the Lord Newton would not sustain nor allow the craving a certification against the right of lands or other heritable titles, whereupon infeftments had actually past, upon Ruchsoles's personal interest, as a creditor, and one who had inhibited; and found that none but one infeft could seek improbation of real rights of lands: albeit it was alleged that actio falsi est popularis et cuivis competit; and that improbations have been sustained at the instance of one who was only served heir by a general retonr; and that a creditor had interest to remove all obstacles out of the way, and then he might affect it by a real diligence himself. Others affirmed this ought to precede ere he could have interest to quarrel the rights of lands wherein as yet he hath no right. Vide Durie, 4 th February 1630, Earl of Kinghorn. It seems, any may propone improbation, though not infeft.

Vol. I. Page 114.