Dilatory defence. - If it must be instantly verified?
Messrs James and John Keiths, v. Mr Robert Burnet, Minister
Date: 6 December 1693 Case No. No 159.
A defence in a reduction, that a charge to enter heir had been given to a wrong person, being proponed only dilatorte, was not received unless pleaded peremptorie totius instantiæ
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It was a reduction at their instance as adjudgers of some lands, calling for a voluntary right acquired thereon by Burnet; who alleged, he would not take a term in the reduction, because the pursuer's adjudication was null, being on a charge to enter heir to a wrong person, seeing they offered to prove there was a nearer heir then living at the time of the charge, and who went off the country, and is presumed to be yet alive, unless they offer to prove, that he is dead; vita præsumitur nisi mors probetur. Answered; This ought not to stop your taking a term to produce, and you may insist on your reduction, as accords The Lords found it not receivable hoc loco, being only proponed dilatarie, else all the consummate diligences of Scotland should meet with that objection, you have charged the wrong heir, I offer to prove there was a nearer then on life, but if they would propone it peremptorie tatius instantiæ, then the Lords would consider it.
December 13.—In the cause of Keith and Burnet, mentioned 6th December current, the Lords, on a bill given in by Burnet, allowed this to be tried, whether he had renounced his wadset to Sir Peter Fraser of Doors, the reverser, and if he had ceded to him the possession, and delivered up to him all the writs; for if the wadset was extinguished, and he out of possession, the Lords thought it hard that he should be obliged to take terms to produce the rights in an improbation, which might be cancelled, and though he would get a diligence against Doors to exhibit them, yet it seemed more reasonable the action should go on against the possessor of the lands, than against him who was denuded both of the right and the possession.
Fol. Dic. v. 2. p. 189. Fountainhall, v. 1. p. 575. & 577.
