Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Menzies of Glassie and Campbell v. Napier of Wright's-Houses
Date: 14 December 1678
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In the cause, Menzies of Glassie, and Campbell his assignee, against Napier of Wright's-houses, (Jan. 1678, page 223;) they offered to prove the passive titles against Wright's-houses as representing his uncle, prout de jure, and there is a day assigned them to that effect; after which day Wright's-houses circumduces the term against them for not proving. The pursuers, to stop the circumduction, declare they refer the passive titles to his oath. Wright's-houses being ready to depone, they resile, and declare they will prove aliunde, viz. scripto; and crave a diligence for recovery of writs, wherein he not only designs himself heir, (which were not per se relevant,) but also obliges himself, if need be, to serve heir.
This the Justice-Clerk refused, as against all form; but, in regard the pursuers offered to make faith that the writ was noviter veniens ad notitiam, he ordained them to depone thereupon; and, if they affirmed it, then he allowed them a short term, but no more.
