A probation of the tenor was rejected, because no adminicles in writ were produced, although the tenor of the writ was shown, and the faith of it offered to be proved, as also the casus amissionis.
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The Laird of Drum pursued the Laird of Fedderat to cause the said Fedderat insist in an action wherein he had summoned the Laird of Drum to hear and see the tenor of certain infeftments made by Fedderat, grandson to the said Drum, and spuilzied and distressed by the said Fedderat’s father to be proved, with certification, if he insisted not, he should be debarred from any pursuit of the same. It was answered by Fedderat, that he would pass from his summons, because there were other parties that had interest in the matter which he had not summoned, et de jure nemo invitus agere vel accusare cogitur. To the which it was answered, that in this case the pursuer could not pass from his first pursuit, because the Lords had ordained him to pursue, and that he might not maliciously delay the party in taking to prove infeftments, the which were never in rerum natura, in prejudiciam tertii, which was the Laird of Drum, and certain others that had coft sundry lands from him. The Lords, after long reasoning, assigned a term de novo to the parties to pursue, and answer, with certification they would decern the paties to have no action to prove the tenor of the said infeftments, if he insist not at the term assigned.
