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Scottish Court of Session Decisions >>
Kaidislie or Anderson v Lawder of Whitslaid. [1632] Mor 14027 (25 January 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor3214027-012.html Cite as:
[1632] Mor 14027
A party to verify another to be heir to his father, produced a decree at a third party's instance against him which bore, production of a sasine in his favour as heir Found sufficient evidence, altho the decree had been in absence.
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The said Lawder being convened as heir to his father, for payment of a sum contained in his father's bond; and for verifying him to be heir, a decreet being produced, given at another party's instance against the same defender, being then pursued as heir to his father, by the which decreet he is decerned as heir to him, being found proved by production of a sasine given to him as heir to his father; which decreet proceeding upon the said probation, the Lords found proved this party heir in this process, and that there was no necessity to produce the sasine, nor any other writ, except the said decreet to prove him heir, so long as the said decreet stood unreduced; albeit the defender alleged, That that decreet was given against him, being absent, and for not compearance, and that deducta in uno processu non probant in alio, et res inter alios judicata aliis non nocet, and that if the party will produce the sasine used in the other process, he will offer to improve the same; for he alleged that there was never such a sasine; which allegeanee was repelled, in respect of the said decreet, which behoved to prove, ay and while the same were reduced, and the manner whereby it was there found proved taken away.
Act. Hart.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 2. p. 347. Durie, p. 614.*** Spottiswood reports this case:
1632. July 25.—In an action of registration pursued by Magaret Anderson against Gilbert Lawder of Whitslaid, as heir to his father; for verifying him to be heir she produced a decreet obtained against him as heir to his father, at the instance of Richard Lawder, and that by production of a sasine of a tenements in Lawder, given to the said Gilbert as heir to his father, which sasine the decreet bore to have been produced. Alleged, That decreet was obtained for not compearance, and therefore ought not to be respected, except the sasine mentioned therein were now produced, which when it shall be, the defender will offer to improve it; otherwise it were hard to make a decreet obtained upon the production of a false sasine perhaps, to work ever after against the defender. Replied, That ought to be repelled in respect of the decreet standing, given upon lawful probation. The Lords repelled the allegeance.
