A defender in a reduction and improbation, having produced an infeftment in the lands, the rights of which were craved to be reduced; and the pursuer alleging that these lands were part of these contaired in his the he was obliged to prove this averment, before a term to produce was against the defender
Click here to view a pdf copy of this documet : PDF Copy
Master John Hay the Clerk having pursued a reduction and improbation against the Town of Peebles, of all right of Ascheils belonging to him in property, containing also a declarator of property of the said lands of Ascheds, and that certain hills lying towards the town lands of Peebles, are proper part and pertinent of Ascheils; he insists in his reduction and improbation, for certification, or at least, that the defenders would take terms to produce—The defenders alleged no certification, because they stand infeft in these hills in question, per expressum, and the pursuer is not infeft therein.—The pursuer answered, That he offered to prove that they were proper part and pertinent of the lands of Ascheils, whereof he produces his infeftment.—The defenders answered, That till the same were proved, they were not obliged to take terms to produce, or otherwise, upon this pretence of part and pertinent, before the same were instructed, any party might necessitate all his neighbours to make patent to him their charter-chests.—The pursuer answered, That the defenders ought to take a term to produce, and that before certification, at that term he would prove part and pertinent, and alleged the practique in the case of the Town of Stirling, observed by Durie, 24th June 1625, No 18. p. 6621.
The Lords sustained the defence, and would not put the defenders to take terms, till the lands in question were first proved to be part and pertinent, and allowed the pursuer to insist primo loco in his declarator for that effect; and as to the practique alleged, they found in that case, the defenders alleged upon no right, whereas the defenders propone here upon an express infeftment.
Fol. Dic. v. 1. p. 445. Stair, v. 1. p. 585.*** Gosford reports this case:
1669. January 19.—In an improbation pursued at Hayston's instance against the Town of Peebles, bearing likewise a declarator of property of the lands of Eastshiells, wherein he called for all evidents of the Town of Peebles, of a commonty which he alleged was part and pertinent of Eastshiells; the Lords refused to grant certification, seeing the pursuer was not specially infeft in the said commonty, which was contained in the Town of Peebles’ infeftment; but ordained him first to insist in his declarator of property, because there was no reason to cause the Town produce all their evidents to a person who was not specially infeft.
