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Scottish Court of Session Decisions >>
Johnston v L. Johnston. [1633] Mor 13262 (7 March 1633)
URL: http://www.bailii.org/scot/cases/ScotCS/1633/Mor3113262-020.html Cite as:
[1633] Mor 13262
Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. III.
Production of Titles cum Processu.
Johnston v. L Johnston.
Date: 7 March 1633 Case No. No 20.
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In a declarator of liferent of the lands of, pertaining to umquhile Captain Johnston of Lochouse, holden of the Viscount of Drumlanrig, Lord of the regality, within which the lands lie, being sought, by the donatar made by the Lord Drumlanrig, Lord of that regality; it was found, (according as the L. Johnston alleged, ought to be first done,) that no process could be granted upon that gift, except that the Lord Drumlanrig's infeftment of that regality were first produced in ingressu litis, and shown to the party. And where it was replied, That he who was donatar ought not to be compelled to produce the same in initio litis, it not being his own evident, seeing he offered to proveand produce the same cum processu, which ought to be sustained; as in actions of spuilzie by sub-tacksmen such pursuits, are sustained, if the sub-tacksman offer to prove cum processu, that his author was tacksman; and no necessity is found of instant production of his author's tack;—this reply was repelled, and not respected.
Act. Advocatus, Nicolson & Burnet.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 302. Durie, p. 679.
