A decree was found null, as without proof, because the writ by which it was to have been proved, though libelled upon and produced, was not narrated in the production.
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Alexander Pitcairn having right by progress to a wadset granted by James Kininmouth to Mr James Gordon, and by him disponed to Sir Archibald Sydserf and by him to the pursuer, pursues the tenants for mails and duties, who alleged, That Gordon or Sydserf were satisfied by intromission with the rents, for which they were countable; it was replied, That Sir Archibald Sydserf had obtained declarator of the expiring of the reversion, and was neither countable or redeemable, and for proving thereof produced the decreet of declarator in anno 1637. Against which it was objected, That it was null, because albeit the libel was upon a clause irritant, whereby it is provided, if the money were required, and not paid within such a time; the reversion should expire; yet, at the compearance and production, there is no mention thereof, albeit at the conclusion, the decreet bears, because the libel was sufficiently proved by production of the writs aforesaid, which can be only understood of the writs in the production, and it is not enough that they were libelled upon, for in all decreets the whole production is specially inserted. It was answered, That the requisition was truly produced, and that the omission of the clerk to repeat it in the production cannot annul the decree, after so long a time without a reduction thereof. It was answered, That albeit in favourabilibus, the Lords may supply defects upon production, ex post facto; yet, in odiosis, such as clauses irritant of reversions, the Lords ought not to admit the same.
