Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Laird of Rowallan
v.
Lawsone of Kermure, The Earl Morton, and Others

Date: 11 February 1673

Click here to view a pdf copy of this documet : PDF Copy

In the forementioned action, the 22d November 1671, in obedience of the Lords' ordinance therein mentioned, that Rowallan should produce such adminicles as might fortify the executions of the summons of improbation, he did produce his father's and goodsire's infeftments of the lands controverted, in anno 1630, with these several summonses of improbation, raised and signeted within six days after his father's service: as likeways an assignation made by his father to him of the said action of reduction and improbation, bearing expressly the said summons and executions thereof; and offered to make faith, that he truly received the same as they are now made use of in process; by all which he urged, that seeing, by the act of prescription, all diligence as to preceding actions did prescribe in anno 1630, and that the said summons could only have been raised and executed to prevent the hazard of prescription, and that the executions were applicable to these summonses; therefore, that the arguments adduced against them being but presumptions, could not be regarded to take from him the benefit of this action.

It was answered, That the executions not being special, as was before alleged, and being on a schedule apart, and the messengers and witnesses being all dead, these adminicles were not sufficient; especially seeing the summons libelled was against the Earl of Morton, and all others having interest; whereas the executions did not bear any other persons to have been cited.

The Lords did sustain the adminicles to fortify that the executions were applicable to the summons alleged, upon Rowallan giving his oath that he truly received the same, with the assignation from his father; and that he never knew or heard that the same was made up; unless that the defenders could allege and prove, that there were other actions intented or summons, executed at old Rowallan's instance against the Earl of Morton, to which the execution in question might be applicable.

Page 313.