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Mr James Inglis, of St Leonard's, v Lord Alexander Hay. [1709] Mor 13293 (2 July 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor3113293-066.html Cite as:
[1709] Mor 13293
Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Mr James Inglis, of St Leonard's, v. Lord Alexander Hay
Date: 2 July 1709 Case No. No 66.
The pursuer of a reduction not allowed to repeat incidenter a proving the tenor of a writ, necessary to make up his active title.
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At advising the reasons of reduction of a decreet of preference, obtained by Lord Alexander Hay against the Creditors of Mr Cornelius Inglis of Eastbarns, pursued against Lord Alexander by Mr James Inglis, as having right by progress to an infeftment of annualrent for L. 184, out of the estate of Eastbarns, upon an heritable bond granted by Mr Cornelius Inglis, the heritor, to Mr Patrick Kelly, for the sum of 4600 merks; the defender having objected, That the pursuer did not connect a process of right to the infeftment of annualrent, by producing the precept of clare constat, upon which Janet Kelly, his immediate author, was infeft as heir to Mr Patrick Kelly, the original creditor; the Lords would not allow the pursuer to repeat a proving the tenor thereof incidenter in the process of reduction; albeit the defender, in a process, is sometimes allowed to repeat incidenter a tenor of writs founded on for his defence; because the pursuer, before he convened the defender in his reduction, ought to have made up a sufficient title for prosecuting his intended action, and cannot be allowed an incident for making up his title.
