In an improbation of a comprising, the clerk thereto was not found necessary to be summoned, although the warrants thereof were called for; as he was not a public person, but chosen at the pleasure of the compriser, who chuses his clerk at his own hazard.
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In an improbation by Mr James Henderson contra Lady Knockhill, of certain comprisings and infeftments following thereupon, given by the superior of the lands of Knockhill, which were also comprised by the pursuer, likeas also he was infeft thereupon by the superior; the defender alleging, that no process could be granted, because the warrants of the defender's comprising were called to be produced and improven, and the clerk to the comprisings, who kept the saids warrants, not being called in this process, no process ought to be granted therefor; likeas she alleged, that seeing the infeftments made to her by the superior were quarrelled, the superior ought to be called; both these exceptions were repelled, for the clerk to the comprisings was not found needful to be summoned, seeing he was not a public person, but in this case of comprisings, was but a private person chosen by the election, and at the pleasure of the party compriser, who, upon his own hazard, chuses his clerk, and so who must be answerable to produce the warrants of his own evidents, and to be liable in law for the same, and not the clerk. And the Lords found no necessity to summon the superior, seeing the pursuer quarrelled not the superior's right, but the right personally made to the defender by the superior of the property, which superior was also granter of the pursuer's right.
Act. Advocatus.Alt. Kinross.Clerk, Hay.
Fol. Dic. v. 1. p. 139. Durie, p. 378.
