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The Laird of Rowallan v The Earl of Tweeddale, Lord Rutherford, and Others. [1671] Mor 6643 (22 November 1671)
URL: http://www.bailii.org/scot/cases/ScotCS/1671/Mor1606643-051.html
The Laird of Rowallan v. The Earl of Tweeddale, Lord Rutherford, and Others
Date: 22 November 1671 Case No. No 51.
A general service is a sufficient title in an improbation of rights affecting an estate, in which the pursuer's predecessor died infeft; tho' it would not be sufficient, if, after production, the pursuer were going on with his reasons of reduction.
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In an improbation pursued at Rowallan's instance, as heir to his predecessors, who were infeft in the lands of Ingerston and Spittlehaugh, it was alleged, 1mo, That he being only general heir, could not pursue an improbation, which was to take away the defenders real right of their lands. This defence was repelled, in respect his predecessor's infeftment was produced, to whom he was served heir in general, and the allegeance only competent in a reduction. 2do, It was alleged, That the pursuer's right was prescribed, his predecessors infeftment being old, and no diligence done by the space of 40 years; and for any alleged interruption, it being only a summons raised in anno 1630, and the executions thereof not stamped, conform to the act 74. Parliament King 6. James 5;—it was replied, That the executions being subscribed by the messenger, needed no stamp, the act being only made when subscriptions were not in use; and as to summonses which might be executed by any Sheriff in that part, that act of Parliament was in desuetude. This allegeance was likewise repelled, in respect of the reply. 3tio, It was alleged, That the execution produced was in a schedule apart, and not indorsed upon the summons; neither did they bear the pursuer's predecessors names, at whose instance they were raised; and that the persons cited were only summoned conform to the within written letters, which might be applicable to any kind of summons whatsoever; and the messenger and witnesses being all dead, it were or a dangerous preparative that upon such citations which might be made up, the rights of lands should be taken away, where the defenders and their authors had been 100 years in peaceable possession.—The Lords, before answer, did ordain the pursuer to condescend what way he could instrust the verity of that execution produced, which they found to be necessary in this case.
Fol. Dic. v. 1. p. 444. Gosford, MS. No 402. p. 202.
