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Sir Hugh Dalrymple of North-Berwick, President of the Session v Sir John Inglis of Cramond. [1708] Mor 13516 (28 January 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor3113516-047.html Cite as:
[1708] Mor 13516
Sir Hugh Dalrymple of North-Berwick, President of the Session v. Sir John Inglis of Cramond
Date: 28 January 1708 Case No. No 47a.
Whether a reduction of an act of litiscontestation might be repeated, without awakening or transferring?
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My Lord President having given in a bill to the Lords, representing that he had transacted with all the creditors upon the estate of North-Berwick, purchased by his Lordship at a public roup, except Sir John Inglis of Cramond, against whom he had obtained a decreet of declarator of extinction of his debt, and therefore craving up his bond for the price according to the act of Parliament 1696; Sir John presented a counter-bill, upon which a hearing was allowed to both parties.
Alleged for Sir John Inglis; He had raised reduction of the decreet against him upon this ground, that the same was not only in absence, but null, in respect there was a depending process at the instance of his father against the tenants of North-Berwick, wherein the Lord Balmerino, my Lord President's author, was compearing, and an act extracted, which ought to have been awakened and transferred against Sir John; and my Lord President, an assignee to a litigious right, who is in no better case than his author, could raise no new sep rate process neglecting the former. For line pendente nihil innovandum; and it would occasion confusion and multiplicity of pleas, if one party were allowed to relinquish a depending process, and raise a new one at his option.
Replied for my Lord President; That though he had no other title but as assignee by my Lord Balmerino, he may repeat, as he does, a reduction of that act upon which Sir John summarily quarrels his decreet; but as purchaser at the roup he has a special and unquestionable interest to bring the competition to a decision; without being concerned in any former question about mails and duties before the sale. Nor is it of any moment to object, that the pursuer's title of the sale was a disposition from the Lord Balmerino; for any person may purchase, whoever pursues the sale, and the purchaser gets a distinct right as the highest offerer; and any purchaser, before the regulations appointing rankings to precede sales, might acquire what rights he pleased upon his peril, and then pursue the other creditors for declaring the price exhausted, as was done in this case.
Duplied for Sir John Inglis; He having produced the act in the former process, in order only to instruct the reason of reduction of the declarator against him, my Lord President could not be allowed to repeat a reduction of the said act instantly; but must awaken and transfer the former process or else go in his reduction as accords via ordinaria, that Sir John may have the induciæ legale; 2do, A decreet of sale being but a judicial alienation for the behoof of creditors, it cannot prejudice them, or afford any new title to quarrel their rights; so that the President could only quarrel Sir John's right upon the interest of creditors conveyed to him, which were all in the field in the former process at old Cramond's instance.
The Lords repelled the dilatory defence proponed for Sir John Inglis; and found that my Lord President might repeat his reduction of the act of litiscontestation summarily, without awakening or transferring.
