Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Laird of Wardes
v.
Balcomie

1629. July 2and 14.

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In a summons of excambion, it is not necessary to summon any other parties but the first maker of excambion and the present possessor of the lands.—2 d July 1629.

In the said action, it was alleged, That no declarator should be given to restore the pursuer to the lands of Balcomie, because the Laird of ——— and his predecessors were infeft in the said lands by the king simply, without any mention or respect to any former excambion made betwixt the king and Wardes: and although the charter granted by the king to Wardes, of the lands of Carioch, made mention that they were given to Wardes in excambion with the lands of Balcomie; yet that narration contained in the king's charter could not infer nor compel Balcomie to quit his lands of Balcomie to the Laird of Wardes, wherein Balcomie was purely and simply infeft, except Wardes should produce and verify his predecessors were infeft in the said lands of Balcomie before the excambion. To the which it was replied, That Wardes had no necessity to produce any former [right,] preceding the charter of excambion; but the king's charter, bearing excambion, and obliging the king and his successors, in case of eviction of the lands of Carioch from Wardes, that he should have regress to the lands of Balcomie, was sufficient right to instruct his pursuit; neither could he be obliged, after so long a time, to produce this former right. Which reply the Lords found relevant, and repelled the exception.

Page 69.