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Scottish Court of Session Decisions >>
Lo. Cathcart v His Vassals. [1622] Mor 6617 (20 December 1622)
URL: http://www.bailii.org/scot/cases/ScotCS/1622/Mor1606617-014.html
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In improbations, no process sustained at the instance of the Lo. Cathcart, for production of writs made by his father, because he libelled infeft as heir to his goodsir, and libelled not that his father was infeft, or that he was heir to his father.
In the same case the Lords found, that the discharges of reversions being called for, the Lo. Cathcart behoved also to produce all his reversions simul et semel, and found it not sufficient to condescend upon the maker and receiver, date and sum.
Fol. Dic. v. 1. p. 443. Kerse, MS. fol. 207.*** This case is also reported by Haddington:
Lord Cathcart pursued an improbation against a number of his vassals. They alleged they could not be compelled to produce to him any evidents of the lands libelled, made to them by the Master of Cathcart, his father, because he was not heir to him.—It was answered, That he being infeft by his goodsir, or as heir to his goodsir, would have action of improbation for evidents of the lands libelled, made by his goodsir, fore grandsir, or any other of their predesors, to whom they might succeed jure sanguinis, albeit the pursuer was not heir to his ancient and remote predecessors.——The Lords found, That albeit the pursuer would be admitted to pursue for evidents alleged made by his ancient predecessors; yet his interest produced proceeding from his goodsir, excluded him from all pretence that his father was infeft in the lands; and so he being his immediate predecessor in blood, he could have no action to improve evidents made by him, unless he were served to him, or infeft by him. It was also found, that the pursuer could have no action for production of discharges of reversions, unless he, simul et semel, produced his reversions, and would not allow his condescending upon the name of the granter, receiver, sums, lands, and date; but would have the reversions themselves produced. They sustained the summons for heritable bonds and decreets arbitral concerning the lands libelled, and would not grant incident to the defender for the decreets arbitral pronounced in their favour. They would not grant incident against parties called in the incident as havers, they being only named Wm Campbell in ——, and John Mitchell in ——; nor would not suffer them now to design them, after the production of the incident. They sustained an incident for Campbell of Kenynecleuch, albeit not authorised by curators; because they thought it equitable not to suffer his evidents to be decerned to make no faith for not production, and only ordained him to provide himself of a curator ad lites against next term.
