Scottish Court of Session Decisions

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

The Earl of Marr
v.
Lord Elphingstoun

Date: 23 June 1623

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In an improbation pursued by the Earl of Mar, against the Lord Elphingstoun, as use is in such cases, there being a general clause in the summons, whereby the defender was called to produce, by and attour the particular evidents especially set down in the summons, all and whatsoever writs and evidents, made by such or such persons, of the lands libelled, as such summons usually proports; and incident being used by the defenders, for recovering of the same writs specially libelled; in the which incident the defenders, who were thereby called as havers, were also called for having all and sundry other writs, conform to the general clause contained in the summons of improbation: which general clause of the incident being quarrelled by the pursuers of the principal cause of improbation, alleging that that generality could not be sustained in that incident, because no person could be convened as haver, except of some particular designed writ, and not of such generality, whereupon no improbation could be led; and albeit that clause was contained in the principal summons of improbation, yet that could not be a reason to sustain that general clause in the exhibition or incident, seeing, in the improbation, he was not holden to prove any thing, but conceived his libel negative, that there were never such evidents, and if any was, the same were false: against the relevancy of the which generality the party could obtrude no argument; whereas the defender, by his incident, alleges, positive et affirmative, that these evidents were false, and that they are in the parties' hands whom he convenes, which of necessity ought to compel the user of the incident to condescend specially what writs these are, which he positive affirms to be, and that the same are in the defender's hands, called for by the incident;—the Lords found, that this incident could not be sustained in the general clause, albeit that clause was as general in the principal summons of improbation, except the pursuer and user of the incident were special upon all the particular writs for which the defenders were convened in that incident; and therefore ordained the user to condescend specially upon each particular writ for the which he craved the incident. Which being specially condescended upon, the Lords sustained the incident, but not for the general clause.

Act. Hope and Aiton. Alt. Nicolson and Stuart. Scot, Clerk.

Page 64.