In Possessory Actions, Replies against the Defender's Right are reserved till Reduction. - Objections against Rights Granted by Ecclesiastics how Proponable.
Cunningham v. Austin
Date: 11 December 1623 Case No. No 38.
In a removing this exception was found relevant, that the party was infeft upon a comprising; and the Lords refused to oblige the defender to produce the comprising, to dispute its sufficiency hoc loco, tho' it was alleged to be led for an heritable sum, not made moveable by requisition or otherwise.
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In an action of removing betwixt Cunningham and Austin, The Lords found an exception relevant, founded upon an heritable infeftment granted to the excipient of the lands libelled, proceeding upon a comprising; and would not astrict the defender to produce the comprising to dispute thereupon in this judgment of removing; but found the exception, bearing the defender to be heritably infeft, relevant; albeit it was replied by the pursuer, that the comprising, which is the ground of the infeftment, will appear null, if the same were produced, seeing it is deduced upon an heritable bond, never made moveable by requisition or any preceding charge, whereas the comprising could not be deduced, except the sum had been first, made moveable: Which reply the Lords would not discuss in that place, nor urge the defender to produce the comprising.
Act. Cunningham.Alt. Russel.Clerk, ——.
Fol. Dic. v. 1. p. 173. Durie, p. 90.
