Scottish Court of Session Decisions

Subject_1 CITATION.
Subject_2 SECT. XII.

Citation in Declarator of Marches.

Lord Torphichan
v.
-

Date: 8 February 1662
Case No. No 47.

A cognition of marches betwixt vassals, was found valid, though the superior was not called.

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The Lord Torphichan, and certain of his feuars, pursue a reduction of a decreet of the Sheriff, whereby he set down marches betwixt their lands and others, upon this ground, That he did not proceed by an inquest, conform to the act of Parliament, but by witnesses: 2dly, That he as superior was not called: 3dly, That the Sheriff had unwarrantably sustained the setting down of marches formerly by arbiters, to be proven by witnesses.—The defenders answered, The first reason was not objected, and the defenders compearance, it was competent, and omitted: To the second, The superior could have no detriment: To the third, That the setting down of march-stones being a palpable fact, might be proven by witnesses, whether done by the parties themselves, or by friends chosen in their presence, there being neither decreet-arbitral, nor submission in writ.

The Lords repelled the reasons, in respect of the answer, and declared, that if the land fell in the superior's hands, by recognition, non-entry, or otherwise, the decreet should not prejudge him if he were not called. See Process.

Fol. Dic. v. 1. p. 135. Stair, v. 1. p. 95.