King's Advocate and his Factor v. Marquis of Montrose
Date: 19 January 1698 Case No. No 75.
Found, that, in an improbation, the defender was not obliged to produce any writs, but such as were specially called for, and that whether the King or a subject were pursuer. Found, that no certification could pass on a general libel of all writs.
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His Majesty having granted a gift of L. 4000 Sterling, out of the bishop's teinds, where the tacks are expired, and out of their vassals entries, now in the King's hands, by the abolition of episcopacy, to Mr Johnston, late secretary, there is a reduction and improbation raised by his Majesty's Advocate, and Harry Douglas, his factor, against many persons, where the bishops were either superior of the lands, or titular of the teinds; and amongst the rest, the Marquis of Montrose being called, it was alleged for him, that being minor, he cannot be obliged to produce any writs but those which are specially called for, and no certification can pass on the general clause of the libel in improbations of all other writs; and it was so found in a late case betwixt himself and Lennox of Branshogle, and likewise in Dalzell of Glennan's case.* Answered, Whatever may hold among subjects who are obliged to know what they call for, this cannot militate against the King, who cannot so easily condescend. The Lords found there was no disparity, and sustained the Marquis's defence. In this process, there were two particulars noticed, but not debated. The first was, that it is of
* Examine General List of Names.
dangerous consequence to allow such improbations at the King's instance, for he may at that rate force the production of all his vassal's charter chests. 2do, That this action had not the privilege of the King's causes (there being a donatar) and yet it was assumed.
Fol. Dic. v. 1. p. 446. Fountainhall, v. 1. p. 814.
