Scottish Court of Session Decisions

Subject_1 CHARGE TO ENTER HEIR.

Brodie of Lethem
v.
Douglas of Muldarg

Date: 12 December 1672
Case No. No 8.

Probation of a tenor, being a declaratory action, was sustained upon calling the apparent heir, without charging him to enter.

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Brodie of Lethem pursues improbation of a tenor of a bond, granted to him by Douglas of Muldarg, for the price of some victual; which bond was granted by the defender's father, whom he represents; the summons contains also a conclusion of payment. The defender denied the passive titles, and desired that the pursuer might condescend thereon. The pursuer declared that he insisted primo loco for making up the tenor of the bond, which being declaratory, the calling of an apparent heir was sufficient; and alleged, That seeing the casus omissionis, being the burning of the pursuer's house, was most notour, and the adminicles produced were so pregnant, that they were not only sufficient to sustain, but to instruct the tenor; for he produces letters of horning upon the bond relating to the whole tenor of it; item, An instrument of requisition of the victual conform thereto; item, A suspension founded thereon; and seeing the defender refused to represent, he had no interest to propone any allegeance in the contrary. The defender alleged, That being called but as apparent heir, he might propone any defence against the relevancy of probation, albeit he might not propone a defence upon any positive right, as payment or compensation; and therefore alleged, That albeit the adminicles produced be pregnant enough to sustain the probation of the tenor, they cannot be instructions thereof; because horning, passing in course, without the special notice of the Lords, cannot instruct what a bond was in being of this tenor; much less can it show what qualifications might have been there in, which useth not to be repeated in the horning; and therefore the tenor of the writ must either be proven by the writ and witnesses insert there, or by other witnesses above exception, who saw, read, and remembered the tenor of the bond; and the casus omissionis is only of the loss of the extract out of the register, and nothing is shown to clear that the principal that was in the register is miscarried, except that the registers were carried away, which is too general a ground, and would serve to prove the tenor of all writs registrated.

The Lords, sustained the tenor, but found it not instructed by the writs produced, but that it might be instructed by witnesses. See Tenor.

Fol. Dic. v. 1. p. 130. Stair, v. 2. p. 132.