Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Carmichael
v.
Lermonth

Date: 2 July 1622

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In an action of declarator of liferent of some lands which were holden by one Lermonth of the Laird of Kilspindie, and pursued by Carmichael, donator constitute by the Laird of Kilspindie;—the Lords found that this summons needed not to abide continuation, seeing the donator produced a sasine to verify that the superior, viz. the Laird of Kilspindie, was infeft in the land, and that there was no other necessity to prove any more that a continuation might appear to be requisite; for that part of the summons, that the defender held the lands of Kilspindie, needed not be proven, seeing he might disclaim him to be his superior:—and so found, that the action needed not be farther delayed by continuation. And this is contrary to the decision made, 22d November, 1621, in the action, L. Muckall against Robert Stuart; but the Lords declared in time coming they would decide, where the like question occurred, conform to the last decision, viz. that, in such cases, there should be no continuation where the superior's sasine is shown, and the defender to be year and day at the horn.

Act. ——. Alt. ——. Hay, Clerk.

Vid. 23d June 1625, Lo. Stormonth; 6th March, 1624, Dowglass; 24th March 1632. L. Lochinvarr.

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