Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION 1976.
Lady Kiekness v. -
1676.
November.
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Where a defender in an improbation produces an older right than the pursuer's title, in that case the defender needs not suffer the pursuer to get a certification contra non producta, because I will debate immediately why I am obliged to produce no more, and that the production made will exclude you; as was found in the ease of Marshall's improbation against his vassals, where their rights proceeded and flowed from the Earl's father, and not from his brother, since the right whereupon he pursued his improbation was as assignee constituted to a comprising only led and deduced against his brother the last earl. Yet there is one case where even by a later right, I will force them to produce older rights, viz. where the pursuer is superior, (as Marshall was to some of the defenders,) for then he has right to call for their writs, to see their holding, and if they be under irritant resolutive clauses. Vide supra, No. 400, June, 1673, Abotshall against F. Kinloch.
