In a declarator of non-entry, against a singular successor, found unnecessary to cite the heirs of the person last infeft. If the defender were to condescend on them they might be cited cum pro-cessu.
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In a declarator of non-entry, at the instance of the Marquis of Queensberry, as Lord of Torthorral, against the Earl of Annandale, as heritor of the lands of ——,
Alleged for the defender, The saids lands, not being expressly contained in the pursuer's right, they can only be claimed as part and pertinent. And since the defender denies that they are part of the Lordship of Torthorral, and asserts, that he and his predecessors have stood vassals therein to the King, for the space of forty years, the pursuer ought, ub initio, to make up his title, by proving that they are part and pertinent.
Answered for the pursuer, The defender, if he controvent the pursuer's right of superiority, may disclaim it upon his peril.
The Lords found the pursuer needed not prove part and pertinent, but that the defender might disclaim upon his hazard; the process not being designed to take away the defender's property, in which case the allowance had been relevant, but only for claiming the casualties of superiority, where no other superior was competing.
Thereafter it being alleged for my Lord Annandale, That the pursuer must condescend how long the lands have been in non-entry, and by whose death, and must cite the apparent heir of the defunct in initio litis, as proper contradictor, the defender being a singular successor.
Answered, The pursuer being a singular successor to the superiority, he cannot know who were the vassals that died last vest and seised, which the defender may know by the writs. And if he will condescend upon the apparent heirs of the vassal last infeft, the pursuer will call them cum processu. And any superior may claim the retoured duties thirty-nine years back, unless the vassal can instruct how long the lands were full.
The Lords sustained process, unless the defender will condescend who represents the person last infeft, to the effect the pursuer may cite them cum processu. See Superior and Vassal.
Fol. Dic. v. 1. p. 137. Harcurse, (Non-entry.) No 731. p. 207.
