William Gordon v. Sir Alexander M'Culloch of Ardwall
Date: 17 February 1671 Case No. No 10.
A donatar pursuing declarator of recognition is obliged to produce no more in initio litis except his gift.
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William Gordon, as donatar to the recognition of the barony of Cardines, by alienation of the major part thereof, pursues a declarator of the recognition against Sir Alexander M'Culloch, who stands now infeft therein; who alleged no procees, because the pursuer produces no charter to show the lands to hold ward, neither doth he produce the infeftments libelled, by which the recognition is alleged to be procured; and if he shall get a term to prove, and so litiscontestation: be made, the defender will either be excluded from his defences, which he cannot propone or know before he see the infeftments, or otherwise two litiscontestations may be in the same cause, by admitting of exceptions after the term; and, albeit these infeftments be not the pursuer's own writs, yet he ought to have used an incident upon his summons, to have compelled the havers to produce the same, and so before litiscontestation, the defender might have proponed his defence. It was answered, That the pursuer is obliged to produce no more in initio litis than his gift of recognition from the King, for the law presumeth that the King is superior, and that the lands are ward, unless the defender offer to prove the contrary. As for the infeftments, whereby recognition is incurred, they are not the pursuer's title, but media concludendi, which he may produce ad modum probationis.
The Lords sustained the process, and assigned a term to prove the infeftments libelled for inferring the recognition, and reserved all the defender's defences after the production thereof, in the same manner as if they were now produced.
