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In a process of abstracted multures, incident diligence refused to recover writs executed by the defender's author, because presumed to be in the defenders own lands.
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Gilbert Grier, heritor of the mill of Glenisland, and thirled multures there of, pursues Homer Maxwell, heritor of the lands of Speedoch, which were astricted to the said mill, for abstracting of the thirled multures thereof; against which the defender alleged, That he was infeft in the said lands, cum molendinis et multuris, by John——, his author, likeas, his said author was likewise infeft in the same lands cum molendinis et multuris before the pursuer's right. This exception being admitted to the defender's probation, he used incident against certain persons, for having of his said author's evidents, which incident the Lords would not sustain, for the writs made to his author, because it was presumed, that the same behoved to be in the defender's own hands, he having acquired his right from that same author, who is probably presumed to have delivered all the evidents made to him of these lands, the time when the excipient acquired the right thereof from him; and therefore, the incident for his author's writs was refused, likeas the same incident was refused against certain persons convened therein, who were out of the country, seeing they were not summoned upon threescore days, albeit the user of the incident alleged, that he behoved to summon them necessarily to that day which was assigned by the act of litiscontestation, and could not chuse another day, so that it was not his default, seeing there was not a term of sixty days assigned by the act, and it behoved that the day of compearance in the act, and in the incident, should convene together, which was repelled by the Lords, and the incident refused.
Act. Lautie.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 2. p. 190. Durie, p. 14.
