Citation in Simple Reductions of Voluntary Rights.
Murray v. M'Kenzie of Lochsline
Date: 20 March 1630 Case No. No 74.
In a reduction of a tack, set by a kirkman, without consent of the patron, which tack was assigned to a third party, the Lords found no process, because only the assignee, and not the cedent, was called.
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Mr George Murray, sub-dean of Ross, sought a tack made by his predecessor to one Fraser, to be reduced, as being given without consent of the patron. Fraser had assigned it to M'Kenzie of Lochsline, which M'Kenzie was only called by the pursuer to hear and see the tack reduced. Alleged no process, because his cedent Fraser, to whom the tack was set, was not called.—Replied, No necessity to cite any but the defender, in whose person the right of the tack now was.—Duplied, The cedent being obliged to warrant it, should be called who might allege something that the defender knows not of.—Triplied, Let him compear for his interest if he pleased, but he had no necessity to call him. The Lords found the exception relevant.
Spottiswood, (Assignation) p. 21.*** Durie reports the same case thus:
A reduction of a tack set by the sub-tacksman, pursued by the principal tacksman against him, to whom the right of that sub-tack was transferred and disponed, no party being convened in the said reduction, but only the said assignee made thereto,—The Lords found, That the sub-tacksman's heir, or apparent heir to represent him, (himself being dead) ought to be called to the reduction of the said tack; and that it was not enough to convene the assignee, who had the only right to the same; for that writ being quarrelled, some ought to be called, to represent him whom that writ concerned, and who was to be presumed to know more for sustaining thereof than the assignee could know; therefore no process was found, while his heir or apparent heir were summoned.
Clerk, Hay.
Fol. Dic. v. 1. p. 138. Durie, p. 511.
