In a poinding of the ground, no process was found till the party was called, who, at the time of the summons, stood heritably infeft in the lands; although the pursuer replied that there was no necessity to summon him, as his heritable infeftment was but a base one, granted to be holden of the giver. The heritor must be called, not the superior.
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One Patrick Oliphant, upon an infeftment of annualrent granted to him by Sir James Oliphant, pursuing the tenants of the land for poinding of the ground; it was found by the Lords, that no process could be granted in this action, nor the like cases (as was alleged in this process) while the party, viz. were summoned, who, in the time of the raising of this summons, stood heritably infeft in the lands libelled; neither was the reply respected, whereby the pursuer replied, that he needed not to summon him, seeing his heritable infeftment is but a base infeftment, granted to be holden of the giver, and was not granted by the immediate superior; so that the said heritor's right being only made by a mediate superior, he had no necessity to summon him, but it was enough to summon the persons who were heritors by infeftment from the mediate superior, which reply was repelled; and the like necessity found to cite heritors from the mediate superior, as those who were infeft by the immediate, seeing their sasines were alike extant in the public register.
Act. Cunninghame.Alt. Oliphant.Clerk, Hay.
Fol. Dic. v. 1. p. 141. Durie, p. 787.
