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Home v Cairncross. [1590] Mor 2915 (00 June 1590)
URL: http://www.bailii.org/scot/cases/ScotCS/1590/Mor0702915-007.html Cite as:
[1590] Mor 2915
Where the Conclusions of two Actions are contradictory, the Pursuer cannot Insist in both.
Home v. Cairncross
1590.
June. Case No. No 7.
A party intenting an action of proving the tenor, and also another action of exhibition and delivery of the same writ against a third person, the Lords found, that altho' it was cum diversis personis, yet electione unius, tollitur altera.
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William Home, younger brother to the Laird of Coldenknows, pursues the Laird of Mellerstons, to hear and see the tenor of an tack proven, the whilk was sett by the said Laird to the said William, of certain husband lands of soumes; and also, the said William pursewit Nicoll Cairncross, for exhibiting and delivering of the said tack, alleging the same to be in his hands. It was alleged, That the pursuer could not pursue both the ways, and the two actions were incompatibilia. Answered, That it was inter diversas personas, et non eodem modo agendi. The Lords fand be interlocutor, That the pursuer might not pursue both the ways, but behoved to choose et quod electione unius tollebatur altera. As the pursuer thereafter pursued for the proving of the tenor.
