A decreet of declarator of non-entry was found null, because it being libelled, that it fell by the death of the last fiar, his heir of line was not called.
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Duke Hamilton pursued the Lady Callander, for declarator of non-entry of the lands of Mummerills, which was a part of her jointure. Alleged, The Duke was in mala fide to claim the non-entry of these lands, because he is a party-contracter, at least a consenter in her contract of marriage, and at whose instance execution is ordained to pass, for securing her in her liferent lands; and therefore he should have seen her infeft. Answered, 1mo, He being the superior, cannot be deprived of his casualties by this remote interest. 2do, He intented this pursuit of non-entry in her husband's time, and so gave her fair warning to secure herself in the lands, and sibi imputet if she and her husband neglected it. The Lords, on report, repelled the defence, and found the lands in non-entry. But this being stopped, and heard on the 12th of January 1687, the Lords found his decreet of declarator null, because it being libelled, that it fell by the death of James Earl of Callander in 1674, the Earl of Linlithgow his heir of line was not called, though the Duke alleged there was no necessity to cite him.
1687. July16.—The Duke of Hamilton having obtained a decreet of non-entry against the Countess Dowager of Callander of the lands of Mummerills, as mentioned 15th December 1686, there is a reduction of it raised on this ground, That it was null, because the Earl of Linlithgow, the heir of line, was not called, who may have defences. The Lords found the decreet null; where on the Duke applied for a new hearing in presence, and alleged, That he needed not cite the apparent heir, unless he were in possession; and that, in 1683, (No 69. p. 2210.) in a non-entry pursued by the Duke of Queens-berry against the Earl of Annandale, the Lords sustained process, and allowed the heir of line to be called cum processu, as they had done before, between the same Queensberry and Craik of Stuarton. 2do, The omitting Linlithgow in the decreet was only a mistake; for now they produce an execution against him. Answered, They offered to improve it, and craved the Duke might abide at its verity; who alleged he was not further concerned than that it was truly so delivered to his writers and agents by the messenger; yet the Lords would have him abide by it simply.
Fol. Dic. v. 1. p. 137. Fountainhall, v. 1. p. 437. & 467.
