Citation in Processes of Mails and Duties and Removings.
Sir Alexander Home v. -
Date: 10 June 1665 Case No. No 101.
Found in conformity with No 98. p. 2229. See No 104.
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———pursues for mails and duties of certain lands. It was alleged for the tenants, no process, because they offered them to prove, that they were tenants by payment of mail and duty to Sir Alexander Home their minister, before intenting of this cause, and he was not called, 2dly, Absolvitor, because they were tenants to the said Sir Alexander, who had a right of an apprising, and diligence thereupon, anterior to the pursuer's right. The pursuer answered to the first, non relevat, in an action of mails and duties; albeit it would be relevant in a removing. In which two actions the Lords have still keeped that difference, that in removings the heritor should be called, because thereby his possession was to be inverted; but, in mails and duties, the tenants might suspend on double poinding, and thereupon call both parties: Or, if a tenant did collude, the master might use the tenant's name, but double poinding could not have place in removings.
To the second, It is not competent to the tenants to dispute their master's right, which is to them jus tertii; but they should have intimate to their master to compear and defend his own right, who, if he will compear and produce his interest, may be heard.
The Lords repelled both defences, unless Sir Alexander compear and produce his interest.
