Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Thomas Dunbar of Muchrome v. The Vassals of the Barony of Muchrome
Date: 20 December 1662 Case No. No 140.
It was sustained that the defender had produced sufficient to exclude the pursuer, and that till his rights produced were discussed and taken away, there could be no certification contra non producta.
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Thomas Dunbar of Muchrome pursues reduction and improbation against the vassals of the barony of Muchrome, wherein all the terms being run, reserving defences, now, at the last term, it was alleged for Hay of Ariolland, no certification contra non producta against him, because he had produced a precept of clare constat from the pursuer's father as heir, to whom he pursues. 2do, It was alleged, That he had produced sufficiently to exclude the pursuer's right produced, and so till his rights produced were discussed and taken away, there could be no certification contra non producta. The pursuer answered to the first, that the precept of clare constat was but in obedience of a precept out of the chancellary. As to the ancient rights produced, if the defender would rest thereon, he needed not stand that certification should be granted against any others not produced, seeing these produced are sufficient; but if the certification should be thus stopped, the effect of all improbations and non-entries should be marred by dropping in new writs from time to time, and still disputing thereon, and so dispute the reasons before the production were closed; at least the defender ought to allege, that the writs produced are sufficient, and declare he will make use of no further in this process.
The Lords repelled the first allegeance on the precept of clare constat being for obedience, but found the second allegeance relevant hoc ordine, and ordained the defender to condescend upon his rights by way of defence to the pursuer, to answer thereto presently.
