Declarator of the nullity of bonds to ereditors by a fiar in tailzie sustained without a reduction.
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The Laird Balvaird, as heir of tailzie to David Viscount of Stormont, in the lands of Skun, pursues the heirs of line of the said David and Mungo Viscount of Stormont, and several their creditors; libelling, That, by an infeftment of tailzie of the saids lands, made by the said David Viscount of Stormont, it is expressly declared and provided, that none of the heirs of tailzie shall do any deed prejudicial to the tailzie, or contract debt, whereby the tailzie may be altered, otherways the debt so contracted shall be null, and the contracter shall ipso facto lose his right of property, which shall belong to the nearest person of die tailzie; and subsumes that the late Earl of Annandale, last heir of tailzie, contracted debts which might affect the saids tailzied lands; and concludes, that it ought to be declared, that thereby he incurred the clauses irritant in the tailzie, and lost his right of property, and that all the bonds contracted by him, and apprised upon, are null, quoad, these lands; and that the pursuer, as nearest; heir of tailzie, may enter heir in these lands to David and Mungo Viscounts of Stormont, and enjoy the same free of any debt contracted since the tailzie. The creditors alleged no process to annul their bonds and apprising hoc ordine, by way of declarator, but the pursuer must via ordinaria reduce; in which case the creditors will have terms granted them to produce the writs called for to be reduced; which privilege being in their favour, ought not to be taken from them in this extraordinary unformal way.——The Lords repelled the defence, and sustained the summons; in respect there was no bond craved to be produced, or simply reduced; but only that any granted to the defenders since the tailzie are null, and all following thereupon, as to the lands in tailzie, which is no more than that they affect not the lands in the tailzie; and there is no necessity of reduction but where the writs must be produced before they can be reduced; and even in that case, if the pursuer satisfy the production himself, the defender hath no delay; and here the pursuer produces all that is necessary, and craves the rest to be declared null in consequence.
