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A superior pursuing a declarator of non-entry against a Lady liferentrix, though he, as a near friend, was a consenter in her contract of marriage, and at his instance execution was to pass, and therefore it seemed his duty to have seen her infeft; yet the Lords repelled the defence, and found the lands in non-entry: But this being stopped and heard again, the Lords, upon another ground, found the decreet of declarator null, viz. because it being libelled, that it fell by the death of the last fiar, his heir of line was not called.
Fol. Dic. v. 2. p. 82. Fountainhall. Harcarse.
*** Fountainhall's report of this case is No 70. p. 2211, voce Citation; and Harcarse's, and Sir P. Home's No 38. p. 9323, voce Non-entry.
