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Mr. Patrick Collace, assignee constituted by William Henderson, and general heir served and retoured to John Henderson, burgess of Haddington, in and to a decreet of comprising deduced at the said John's instance, against umquhile Mr. Robert Johnston, charged the Laird of Elphinston as superior to infeft him. He suspended, alleging the decreet should be transferred in Mr. Patrick active, and against the heir or apparent heir of Mr. Robert and the Laird of Elphinston as superior passive, because umquhile John Henderson, at whose instance the comprising, was deduced, was dead; and also Mr. Robert against whom it was led, and that long before this assignation; and so till it were transferred no process (it being of the nature of other decreets) till infeftment follows thereupon; for if Mr. Robert had given a bond to the said John for infefting of him in his lands, and John had registrated the same, and charged for implementing thereof, and thereafter deceased, William his heir could have no action thereupon till first he had transferred the same in himself active; multo magis where they are both dead. The Lords sustained the charge against the superior.
