Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Sir John Shaw of Greenock v. The Creditors of David Bruce of Clackmannan
Date: 3 January 1699
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Mersington reported Sir John Shaw of Greenock against the Creditors of David Bruce of Clackmannan, being a reduction and improbation of the rights of Shaw of Sauchie's estate standing in Clackmannan's person, upon the head of the interdiction.
Alleged, 1mo,—I cannot take a day to produce, because my authors bound in warrandice are not called, viz. Kennoway and sundry others. 2do. I am not obliged to produce any real rights to you, because your libelled summons is only founded on an adjudication.
Answered to the first,—You condescending on the authors, 1 will cite them to the same term cum processu. To the second,—My charter and seasine is given out, though not libelled on; which is sufficient to compel you to produce your infeftments also.
Replied,—Though citing cum processu be allowed in other cases, yet it ought not here, because you narrate the progress; and so, knowing them, you should have cited them. To the second,—The charter and seasine is posterior in date to the raising and executing the summons, and so is filius ante patrem.
Duplied,—Esto I know the authors, yet, being dead, I can give my oath of calumny I know neither their representatives nor where they live. To the second,—The real right must be drawn back to support the summons, even as one is permitted to confirm before extract.
The Lords repelled the two dilator defences, and ordained them either to take a term, or then certification to pass.
