A transumpt was found not to instruct a pursuer's title, when the process of transumpt was raised pendente lite principali, and the defender not called thereto.
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Anent the action pursewit by the Tutor of Pitcur contra Lord Gray, as assignee, constitute be certain of Dundee, in and to the action against the said L. for burning of certain tenements pertaining to them in heritage respective; for verification of some of the constituent's titles, there were produced certain transumpts of instruments of sasine, whilk the Lord Gray's procurator alleged, should make na faith against him, in respect he was not wairnt in special to hear the said transumpt, he having special interest, the same being done after the making of the said assignation and intenting of the plea, whilk was thought relevant. Attour, it was excepted that the libel was inept, desiring allenarly the L. Gray to be decerned to content and pay great sums of money to him, as assignee, for the damage and skaith sustained be the constituents for burning of ilk tenement respective; following of law and practique, he should be admitted to have bigged the saids houses, and restored them as good as they were the time of the burning, or else to pay, considering that the walls being the principal part of the house, were standing undestroyed; notwithstanding the whilk allegeance, the libel was found relevant.
