What understood to make a lis pendens. - Assignation granted pendente lite. - Marriage pendente lite. - Encroachments pendente lite. - Titles made up pendente lite.
William Sharp v. Andrew Brown
Date: 14 July 1666 Case No. No 4.
Found, that in regard pendente lile nihil est innovandum, the defender could not put the pursuer in a worse condition, by assigning his right pendente processu, to a person against whom a reply was not competent, which would have been competent against the cedent.
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William Sharp having apprised from Robert Halyburton certain tenements in the Canongate, whereof the said Robert had a right of wadset redeemable for 1600 merks from Andrew Brown, from whom the right of wadset did flow, and who had right to the said tenements by virtue of an apprising led at his instance against David Glen, in anno 1649, for payment of 1600 merks, addebted by the said David to him; the said William Sharp being infeft in the said lands, obtains decreet of mails and duties against the tenants; which being suspended, and compearance was made for Alexander Barns, as heir to James Barns, who stood infeft in the said tenement long before the said Andrew Brown his apprising, who thereupon craved to be preferred, against which right, several allegeances were formerly proponed, but in respect of the surcease of justice, no decreet followed, but several parts of the process were lost, and thereby the pursuer was necessitated to pursue a new pursuit against the present possessor; which being advocated, and compearance made for the same Alexander Barns, it was alleged, no respect could be had thereto; but the pursuer ought to be preferred, because it was offered to be proved by Alexander Barns's oath, that the sums of money for which he had the infeftment of the said tenements were satisfied by the common debtor; to which it was answered, that compearance is now made for the children of James Wright, in whose favours the said Alexander Barns is denuded by disposition, and consequently his oath cannot prejudge him. To which it was replied, that this pursuit being intented long ago, and compearance being made for the said Alexander Barns, and exception of payment being referred to his oath, and that the same was made by the common debtor, for evicting whereof, Glen, the common debtor, had obtained a blank assignation from the said Barns, and filled up the children of James Wright, their names, of purpose to prejudge the pursuer of his allegeance, which the said Alexander Barns could not do, and pendente lite innovate the state of the process. The Lords found, that lite pendente nihil erat innovandum, and that the cedent, Alexander Barns, could not put the pursuer in a worse condition, by assigning his right to the bairns of James Wright.
Fol. Dic. v. 1. p. 551. Newbyth, MS. p. 74.*** Stair reports this case.
In a competition between two comprisers, it was alleged, that the pursuer, who insisted for the mails and duties, his apprising was extinct by intromission within the legal, which was offered to be proved by his pursuer's author, his oath. It was answered, that his author's oath could not be received against a singular successor standing infeft; for as the cedent's oath is not receivable against the assignee in personal rights, much lessis the author's oath against the singular successor in real right.
It was answered, that before the pursuer's right, res fuit litigiosa, in so far as the pursuer's author having before pursued mails and duties in that process, the defender offered to prove by his oath, that the apprising was satisfied, whereupon litiscontestation was made, whereby res fuit litigiosa, and no posterior right could prejudge the defender.
Which the Lords found relevant, and ordained the author's oath to be taken.
Stair, 1. p. 396.
*** A similar decision was pronounced 22d November 1683, M'Brair against Crichton, No 123. p. 2655, voce Compensation; and No 13. p. 5245, voce Heir Apparent.
