Found incompetent to pursue declarator of servitude against tenants, without calling the proprietor.
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In an action by L. Wardis against the Tenants of the L. of Dunkintie, for doing of services to the pursuer's mill, as possessors of the land astricted thereto, wherein the L. of Dunkintie their master, who was not called in the process, compearing and admitted for his interest, alleged, That no process ought to be granted in this case, tending to constitute a servitude upon his ground, except he had been summoned to this pursuit. The Lords found no process therein, while the master be called; and this was found, albeit the master himself compeared for his interest, and proponed this exception himself, and not with the tenants.
Act. Nicolson.Alt. Hope.Clerk, Gibson.
Fol. Dic. v. 1. p. 136. Durie, p. 343.*** The same case is reported by Spottiswood:
The Laird of Ward-house pursued the tenants of Christ's-kirk for payment of their thirled multures to him, and for doing of certain services, as leading stones to the mill, bigging of the dam, &c. Compeared the Laird of Dunkintie, and alleged, No process against the defenders, who were his tenants, because he was not summoned, which not being done, they could not constitute any servitude upon his tenants and lands. This exception, if it had been proponed for the tenants, was very relevant; but it was thought by many of the Lords, that he compearing at the bar uncalled, could not be heard to allege that he was not summoned; yet the most part sustained the exception proponed by Dunkintie himself.
