Citation in Processes of Mails and Duties and Removings.
Haliburton v. Tenants of Carse
Date: 28 January 1702 Case No. No 104.
Found in conformity with No 98. and No 101.
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Jean Haliburton, relict of Thomas Menzies of Carse, being infeft in a liferent out of these lands, upon her contract of marriage, pursues the tenants for mails and duties. Compearance is made for the tenants, who alleged, That they had been in use of payment of their rents to Menzies of Weem, their master, for more than seven years bygone, and so he had the right of a possessory judgment, and ought to be called to this process, and they were not obliged to answer till he were cited. Replied, That she is insisting against the tenants of her own lands, and was obliged to notice none but the natural possessors; and it was jus tertii in the tenants to found on another's right; but that party, if he pleased, might compear, and producing his interest, would be admitted to compete. Answered, If her husband had died in possession of the lands, she might have just cause to plead the continuance of the same; but they offered to prove, that seven years before her husband's decease, Weem was in possession, and so must necessarily be called, else heritors rights might be inverted by their tenants colluding with a third party; and in poindings of the ground, not only the possessor, but the master, debtor in the annualrent, must be cited. The Lords considered, that in petitory actions, as removings, it is a good defence for tenants, that their master is not called; but in the possessory actions for mails and duties, they did not see the necessity, seeing the master may compear and defend. Some of the Lords were for allowing her to cite Weem incidenter in this process; but the plurality repelled the tenant's objection, and decerned in the relict's action; yet superseded extract for a time, that Weem's tutors (he being minor) may search for his papers, and on production debate for his interest, which would be shorter than for the tenants to suspend again upon double poinding and distress.
