Continuation found necessary in a declarator of property, tho' it was instantly verified.
Click here to view a pdf copy of this documet : PDF Copy
Strachan pursues a declarator, that she had right to a wadset, and by consequence to the sums consigned by Burnet of Leys for redemption thereof. It was alleged, That this process being a declarator of property of so great consequence, it behoved to be continued. It was answered, That all was instantly verified. It was replied, That even though all were instantly verified, yet the matter being of great importance, and by the nature of the process it being a declarator of property, it behoved to be continued.
The Lords found that the same ought to be continued.
Fol. Dic. v. 2. p. 178. Stair, v. 2. p. 122.*** Gosford reports this case:
In a declarator of property, pursued at Strachan's instance, of the wadset of the lands of Balbaby against the Laird of Leys; it was alleged for the defender, that the summons was not continued, which is necessary by the form of process, seeing declarators of property are of that nature which is to take away the right of property from the defender. It was replied, That the summons being executed upon 21 days warning, and all being verified instanter, there needed no continuation, as is observed in all declarators of escheat, non-entries, and others of that nature.
The Lords, notwithstanding, ordained the summons to be continued, being of that importance as to take away the property, which is conform to the form of process prefixed to Sir Thomas Hope's practicks.
