Citation in Processes of Mails and Duties and Removings.
Mudie v. Lightoun and the Town of Montrose
Date: 13 November 1634 Case No. No 98.
To found an action of mails and duties against tenants, it is not necessary to call the master. In removings the heritor ought to be called. See No 95. No 101. No 104.
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In an action at Will. Mudie's instance, as infeft upon a comprising, for payment of the mails and duties of the land, which Lightoun the defender alleged that he possessed by a right flowing from Graham, who was heritably infeft in that land; which Graham being once called in this process, and dying pendente lite, the process ought to sist until it were transferred in some to represent him, that they might defend their own right, which he could not be compelled to do, nor to dispute upon his author's right, albeit he was possessor;——The Lordsrepelled this allegeance, and found no necessity of transferring, seeing the Lords found it not necessary ab initio to have summoned the defender's authors; but if the defender had any defence, which might defend him, that he should not pay the mails of the lands libelled to the pursuer, as was desired, he ought and might propone the same as he pleased; but, in this action, which was for mails and duties of lands, the pursuer needed to convene none but the possessors, against which pursuit it was not a competent defence to allege that their author or master was not summoned: Which defence, although it be proponed and received in actions of removing at some times, yet it is not alike receivable in causes for mails and duties, wherein either the possessor ought to maintain his possession by excluding of the pursuers, or else if he cannot do that, as not being acquaint with the ground of his master and author's right, who is not called, he must, after sentence, suspend upon double poinding.
Act. Stuart et Craig.Alt. Nicolson et Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 140. Durie, p. 738.
