Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Earl of Queensberry v. M'Gachan
Date: 19 January 1672 Case No. No 142.
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In an improbation pursued by Queensberry, it was alleged for one of the vassals, That no certification could be granted for non-production of any of the evidents of his lands, because he had produced a charter and sasine, and offered to prove, that his authors and predecessors had been in peaceable possession without interruption above 40 years. It was replied, That the allegeance ought to be repelled, because the pursuer's rights produced were more ancient than those produced for the defenders, which could not exclude his interest to crave certification against all writs posterior thereto, which were not produced.
The Lords did repel the defence hoc loco, and reserved the same to be proponed in the reduction, where it was only competent; and found, that no allegeance was competent against the certification but such as was found so, upon writs produced, which did elide the pursuer's interest.
Fol. Dic. v. 1. p. 451. Gosford MS. No 444. p. 232.*** Stair reports this case.
The Earl of Queensberry pursuing reduction and improbation against his vassals, craves certification; M'Gauchan, one of the vassals, alleges no certification, because he has produced sufficiently to exclude the pursuer, having produced a progress of 40 years. The pursuer answered, non relevat, seeing his titles produced are anterior to the forty years; so that the defence thereupon will not be sufficient, unless possession thereby, and prescription be alleged, which must abide probation, and is not competent in the production, but only in the discussing of the reasons.
The Lords repelled the defence hoc loco, and reserved the same till the discussing of the reasons.
