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Scottish Court of Session Decisions >>
Lo. Kildrummy v - [1626] Mor 6685 (29 June 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor1606685-101.html Cite as:
[1626] Mor 6685
Who must satisfy Production. - What terms allowed for Production. What incumbent on the Defender. - What his Privileges.
Lo Kildrummy v. -
Date: 29 June 1626 Case No. No 101.
Found in conformity with Wardlaw against Curriehill, No 92. p. 6080.
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In an action of reduction and improbation pursued in summons, as usually is done, at the Lord Kildrummy's instance against ———, the defender compearing, produced the writs called for, and declared that he produced the same, for satisfying of the summons and action so far as concerns the improbation, but not for the reduction; seeing he declared that he would not compear concerning the reduction, but be absent, so that a certification in absence might be granted upon the reduction, decerning the writs to be reduced for not production; and which he alleged he might conveniently do, seeing the reduction and improbation were two distinct actions, it would have been then in his liberty to be absent in any of them, or to compear in any of them, as he pleased; so that the pursuing of the same in one summons, could not alter the nature of the actions, but the same remained in themselves two distinct actions, albeit both libelled in one paper, and could not thereby force the defender to any other compearance, than if they were severally pursued; this was not permitted by the Lords, but they found, that either he should compear and satisfy the production in the whole cause, as well for the reduction as for the improbation, or else that he should be absent in toto; and would not suffer him to divide his compearance and production, so that he should be absent, and not produce, and in that same process to compear and produce.
Act. Hope.Alt. Nicolson.Clerk, Hay.
Fol. Dic. v. 1. p. 452. Durie, p. 205.
