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Scottish Court of Session Decisions >>
E. of Lauderdale v Vassals of Musselburgh. [1667] Mor 6716 (5 December 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor1606716-141.html Cite as:
[1667] Mor 6716
Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
E of Lauderdale v. Vassals of Musselburgh
Date: 5 December 1667 Case No. No 141.
Certification contra non producta was stopped on producing and offering to dispute that the writs produced excluded the reducer.
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In a reduction and improbation at the instance of the Earl of Lauderdale against the Vassals of Musselburgh, and in special, Major Biggar and others, heritors and possessors of the lands of Hill,
The Lords found, That the Major having produced a more eminent progress, and which he alleged would exclude the pursuer, no certification could be granted contra non producta; the defender hot being obliged to shew any other writs, until those which are produced are discussed. The Lords found also, That the defenders are not obliged to declare that they will use no other writs than those which are produced; the only difficulty being, that the reason of reduction could not be disputed, until the production be closed; and if the writs produced should be improven or reduced, the pursuer would be put to a new process of improbation, or return and crave certification after dispute in causa, which is incongruous in form.
The Lords were of opinion, that in the same process, the pursuer, after the discussing of the writs produced, might thereafter crave certification contra non producta.
Fol. Dic. v. 1. p. 451. Dirleton, No 113. p. 48.*** Stair reports the same case:
1667. December 7.
The Earl of Lauderdale and John Wauchop, macer, pursue a reduction and improbation of the rights of the lands of Hill, against Major Biggar, and craved certification contra non producta. The defender alleged no certification, because he had produced sufficient rights to exclude the pursuer's title, viz. infeftments long prior to the pursuer's right. It was answered, That this could not stop the certification, unless the defender would declare he would make use of no other rights in this instance, otherwise the pursuers behoved to dispute with him upon every single writ he produced, and behoved to dispute the reasons of reduction with him before the production were closed. The pursuer answered that his allegeance, as it is proponed, was always sustained without declaring that he would make use of no more.
The Lords found the defences (as proponed) relevant, and ordained the Ordinary to hear the parties debate upon the rights produced, and if these should not prove sufficient, the Lords thought that the defender might be forced at the next time to produce all he would make use of in this cause, that so the pursuers were not delayed upon disputing upon every single writ.
