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In an action betwixt L. Hunthill and Rutherford, an infeftment being given of lands fallen by recognition, and thereupon decreet of removing obtained against the tenants; thereafter, upon resignation by him who acquired the right of recognition, another being infeft in these lands, and pursuing action of succeeding in the vice, against one who had entered to the possession of him, against whom the said decreet of removing was obtained before, as said is, at the author's instance; who compearing, and alleging the pursuer's right and sasine of the lands, to be no sufficient right and title, which could give him the right to the lands, or to produce this action, because it depended upon the right of recognition, acquired by his author, which was never declared, and no declarator of recognition being obtained upon the said first infeftment, the same, and all other subaltern rights depending thereupon, was not sufficient; this allegeance was repelled, in respect of the decreet of removing obtained, as said is, by the pursuer's author, and of the pursuer's right proceeding upon resignation of his author, concerning the validity whereof, the pursuer could not, in this judgment of succeeding in the vice, be compelled to dispute.
