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Scottish Court of Session Decisions >>
The Lord Borthwick v Andrew and Mr Mark Kerrs. [1665] Mor 2236 (31 January 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor0602236-110.html Cite as:
[1665] Mor 2236
Citation in Process of Forthcoming. - In Adjudication. - In Reduction ex capite inhibitionis.
The Lord Borthwick v. Andrew and Mr Mark Kerrs
Date: 31 January 1665 Case No. No 110.
In a reduction ex capite inhibitionis, there was found no process till the person inhibited were called, the defender's author, and who was bound to him in warrandice. See No 107.
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The Lord Borthwick pursues a reduction ex capite inhibitionis against Andrew and Mark Kerrs of a disposition made by Sir Mark Kerr of Mauldslie, upon this reason, that Sir Mark was inhibited at the Lady Borthwick her instance, before the granting of the said disposition, whereunto and grounds thereof, the Lord Borthwick was made assignee. The Lords found no process, because the representatives of Sir Mark, viz. the Countess of Lothian and her sister, were not called, as they ought to have been, in this process; and albeit, they were called in a summons of transferring of the same process, yet that was not found sufficient, not being called in this.
Fol. Dic. v. 1. p. 141. Newbyth, MS. p. 24.*** Stair reports the same case:
The Lord Bothwick pursues a reduction, ex capite inhibitionis, of all rights made by Sir Mark Kerr, to Andrew or Mr Mark Kerr of Moristoun, of certain lands. The defenders alleged no process, because none to represent Sir Mark Kerr were called, who being bound in warrandice to the defenders, ought to be called; whereas, of old, processes sisted till warrants were first discussed; so now the warrant ought at least to be called. The pursuer answered, That he was not craving reduction of Sir Mark's own right, but of Moristoun's right, granted by Sir Mark, who was common author to both. And as to the warrandice, the defender might intimate the plea if he pleased.
The Lords found no process till the warrant were called.
