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M'Lauchlans v M'Dougal. [1744] Mor 6783 (27 November 1744)
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[1744] Mor 6783
Consignment by the Pursuer. - Summary incarceration upon suspicion of forgery. - Improbation against titles of honour.
M'Lauchlans v. M'Dougal
Date: 27 November 1744 Case No. No 218.
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Found competent for a defender to propone improbation of the execution of the summons, notwithstanding his having proponed peremptory defences.
Fol. Dic. v. 3. p. 314. Kilkerran, (Improbation.) No 5. p. 283.*** D. Falconer reports this case:
1744. Nov. 28. John M'Dougal of Dunnolick, being pursued by John and Patrick M'Lauchlans, creditors of his father, as representing him on the passive titles by possession of his estate, defended himself on his father's having been forfeited, and that he possessed by tolerance from the Duke of Argyle the superior. The Lord Ordinary, “in respect the possession was acknowledged, and that the defender did not shew a legal title by which he possessed, found the libel relevant, and the debt instructed by the writ produced, and the passive titles acknowledged, as said is, and decerned.”
Afterwards the defender offering improbation of the execution of the summons; which, if he could take out of the way, prescription was run, the Lord Ordinary, on the 16th instant, upon advice with the Lords, “found, That notwithstanding the peremptory defences, yet it was still competent for him to propone improbation against the execution quarrelled;” and to this the Lords this day adhered.
Act. H. Home.Alt. A. M'Dowal.Clerk, Gibson.
D. Falc. v. 1. p. 10.
