Certification was refused in an improbation, at the instance of a superior against vassals, of writs granted to their predecessors, until the predecessor's heir of line was called, although the heir-male was called, and had acquired the heir of line's right; but it would have been granted, if the pursuit had been restricted to such writs as were conceived in favour of this predecessor and his heirs male.
Click here to view a pdf copy of this documet : PDF Copy
In an improbation betwixt the E. Marr and His Vassals, wherein the defenders were convened for production and improbation of writs of the lands libelled, made to their fathers, good-sirs, grand-sirs, and other special predecessors enumerate in the summons, and to any other their predecessors generally, to whom they may succeed jure sanguinis, as use is in such actions; it being alleged for L. Pitsligo, one of the defenders, that no process nor certification could be given against him for any writs made to his predecessors, because his descent was from a second brother of Pitsligo, whose elder brother had daughters, who of the law would be lineally and generally heirs to their predecessors in sanguine; and which daughters had persons descended of them in life, upon whom the defenders condescended, and who not being called, no process could be granted in this action; and the pursuer replying, that these heirs female were denuded of their right in the person of the defender's predecessors, to whom he might succeed jure sanguinis; The Lords found the exception relevant, and no process to be granted, while the apparent heir to these daughters were called; for this defender could not be heir in sanguine to that person who had bairns of his own, of whom there were descendants yet living, so that he could not be the right contradictor to maintain, or who could be convened to produce the writs made to his predecessors, there being others extant nearer in blood, as said is, to the succession, viz. the descendants of the elder brother. And where it was replied, That the right was devolved by the saids daughters, in the persons of this defender's predecessors, to whom he was heir in blood, the Lords found nevertheless the exception relevant; for they found the greater necessity to summon some to represent the saids heirs female, seeing they were authors to the defenders, who were called in his right. And the Lords found in this cause, and all the like improbations, that the clause whereby the defenders are called for production of writs, made to any other their predecessors, to whom they may succeed jure sanguinis, beside the clause of the summons, whereby they are called for production of the writs made to their special predecessors enumerate in the summons, such as father, good-sir, grand-sir, ought to be ruled, adjoined, and understood, as repeated in ilk predecessor libelled, viz. that the defender called, is and shall be holden to produce only such writs made to any of the special predecessors, particularly named in the summons, as to whom he may succeed jure sanguinis; which words, as to whom he may succeed jure sanguinis, the Lords find and declare shall be holden as repeated, and subsequent to ilk predecessor contained in the summons; and that that clause is not to be taken, as if it had only relation to the general clause anent evidents made to any of the defender's predecessors, attour and beside those who are specially designed in the summons; but that it must be alike understood, both for the general and for the special. And where the like actions are pursued against parties, as heirs of provision, or of tailzie, to their predecessors, the Lords find no necessity to summon the heir of line, where the pursuit is retrenched only to the writs concerning those lands which are provided to the heir-male, or of tailzie and provision. See Improbation.
Act. Hope, Stuart, Aiton, & Nicolson.Alt. Belshes & Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 139. Durie, p. 325.
