In a case similar to Hay against the Town of Peebles, No 49. p. 6642. the Lords assigned at in to the pursuer to prove part and pertinent, and the same term to the defender to produce, if the libel should be proved.
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The Earl of Marr being infeft in the Earldom of Marr, and Lordship of Garrioch, pursues reduction and improbation against the Marquis of Huntly, and others, for reducing and improving their rights of certain lands, expressed in the libel. The defenders allege no process, upon the pursuer's title produced, because the lands in question are not contained therein. The pursuer replied, That his infeftment of the Earldom of Marr having no enumeration of the particular lands, must be effectual to obtain certification contra non producta, which can only import, that if the lands in question be parts of that Earldom, the defenders must produce; but, if they be certain, and put the matter upon that hazard, that the lands in question are no parts of the Earldom, but were either never of it, or were dismembered from it, before any of the pursuer's titles produced, any certification against them will operate nothing, otherwise there could never be improbation upon the general designation of Barony or Earldom, such having no enumeration of parts, which is most ordinary. The defenders duplied, That, if the pursuer had only insisted for certification against all rights of the Earldom of Marr, or any parts thereof, there might have been some pretence; but, when he insists against particular lands named, it were absurd to conclude, that all the defenders rights thereof should be declared false and feigned, unless they were produced, for so he might force the whole kingdom to produce their whole writs; therefore, he must either libel, or reply, that the lands in question are parts of the Earldom of Marr, and must prove the same before they be obliged to produce, otherways he may force any man in Scotland to produce his rights upon the sole assertion, that they are parts of the Earldom of Marr; but the Lords have found, in the case Hay against Town of Peebles, No 49. p. 6642. that part and pertinent behoved to be proved before any term were taken to produce. It was triplied, That the Lords since have ordinarily assigned a term to produce; and ordained the pursuer, at the same time, to prove part and pertinent of lands not enumerated, by which neither party is prejudged; for, part and pertinent must be first proved, which form will allow to advise the probation, as to part and pertinent, summarily at that term; and, if it be proved, the defenders must then produce, or suffer certification, in the same way as any reply is to be proved, which does not acknowledge the defence.
The Lords assigned a term to the pursuer to prove part and pertinent, and the same term to the defender to produce, in case the same were proved, with certification, &c.
Fol. Dic. v. 1. p. 446. Stair, v. 2. p. 755.*** Fountainhall reports the same case:
The Earl of Marr against the Marquis of Huntly, and others, for improbation of all rights of the Lordship of Garrioch, which he derives as heir to Dame Isobel Douglas, who was infeft in 1426. Alleged, Their lands were not in his infeftment. He offered to prove part and pertinent. The Lords ordained them to take a term to produce, and the Earl to prove part and pertinent.
