Where the libel was entirely informal, this dilatory defence was admitted, after peremptory defences had been made.
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The Lords, in the process betwixt the Earl of Lauderdale and the Lord Yester, (See Appendix.) found the Lord Yester bound in regard of his mother's renunciation to the Duke of Lauderdale, her father, and as lawfully charged to enter heir to her, and otherwise representing her, to denude of Dunfermline's apprising in favours of the Earl. Yester now gives in a petition, representing, that the Lords' interlocutor went upon a mistake, as if he had been pursued, as lawfully charged to enter heir to Lady Mary Maitland, his mother, whereas there were no such letters of general charge to enter, nor any execution thereof produced; nor were the passive titles, in so far as concerned her, libelled, but only as representing the Duke, his grandfather; and therefore, the summons being wrong laid, he ought to be assoilzied ab hoc instantia. Answered, 1mo, This is out of the road of all form, seeing there is nothing more incontestable in law, that after peremptors proponed, and interlocutors in presence thereon, a defender cannot recur to a dilator, or be allowed to deny the passive title so that his peremptory defence, that his mother's renunciation did not comprehend this apprising, was a clear acknowledgment of, and acquiescence in the passive titles; 2do, If my Lord Yester had in initio litis defied his representing my Lady, his mother, then my Lord Lauderdale would have insisted in the other conclusion libel, to have it declared, that be had the sole and only right to the comprising in question, declaratoria juris, and which was competent against an apparent heir, to force him to denude; But, 3tio, He is truly convened as representing his mother, (though there be no charge against him) and so the libel ought still to be sustained. Replied for my Lord Yester, That so long as there is nothing extracted, her may object a nullity in the summons; for it would be an ill grounded interlocutor, that is founded on a non ens, viz. that he is pursued as representing his mother, when there is no such thing; for though it be transiently mentioned after the will of the summons, yet not being in the premisses, it is impossible any formal decreet could be extracted thereon; for nothing is taken into the decreet, but what is libelled before the will, which is altogether forgot here. The Lords found no process on this informal libel.
Fol. Dic. v. 2. p. 188. Fountainhall, v. 2. p. 524.*** Forbes reports this case:
December 13.—In the action at the instance of the Earl of Lauderdale, as heir-male to the Duke of Lauderdale his uncle, against John Lord Yester, as charged to enter heir to, or otherwise representing the deceased Mary, Marchioness of Tweeddale his mother, to denude of an apprising led against the estate of Dunfermline in the year 1653, and conveyed to the Duke of Lauderdale, anno 1668, upon this ground, that the said Marchioness had, in anno 1676, renounced all right and interest in the estate of Lauderdale, and others belonging to the Duke her father, in favours of him and his heirs-male; the reasons alleged for the defender, why the renunciation did carry no right to the apprising in question, being repelled 22d June 1709, (See Appendix.) he now contends, That no process can be sustained against him, because he is not charged to eater heir to his mother; nor was that passive title libelled against him.
Replied for the pursuer; The defender cannot be allowed to recur now to a no process, after his proponing a peremptory defence, which liberates the pursuer from proving the passive titles.
Duplied for the defender; The defence proponed by him was not peremptoria causa, such as infers a representation, but only an objection against the pursuer's title to the apprising, which is peremptory of the instance, and may be proponed without acknowledging the passive titles; seeing the pursuer's title must be instructed, before process can be sustained at his instance; 2do, Tho’ the defence had been such a peremptory as owned the passive titles, it could not fix the defender; because no passive title is libelled, but that of charged to enter heir, and no charge is produced: For the proponing peremptories does only free the pursuer from the trouble of proving the passive titles libelled; and the libel cannot be now amended in such a fundamental, though sometimes an a mendment in circumstantials is allowed.
The Lords found no process against the defender, in regard there were no passive titles libelled against him as representing his mother, but as charged to enter heir, and no such is produced: And they would not allow the pursuer to amend his libel.
