An extract of an inhibition out of the record sufficient to found a reduction ex capite inhibitionis; reserving to the defender to pursue improbation.
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John Williamson, Sheriff-clerk of Perth, being assigned by Agnes Lamb, relict of James Dycks, to a bond of 2700 merks, granted by Patrick Anderson of Tulliallan to her and her husband in liferent, and the children in fee, whereupon there had been an inhibition served, pursues a reduction against Sir Patrick Threapland of the right made by Anderson to him of certain lands, ex capite inhibitionis. Alleged for the defender, That there could be no process upon the inhibition, because, it was only an extract under the pursuer's own hand, which could not make faith for him, unless the principal were produced; as also, albeit it were produced, yet it could not be a ground of reduction of the defender's right; because, albeit the pursuer be assigned to the debt, yet he is not expressly assigned to the inhibition. Answered, That the extract under the pursuer's own hand was sufficient, he having extracted the same ex officio, as being Clerk; and if he has taken out a wrong extract, he is liable for malversation. And farther to instruct that it is a true extract, there is another extract produced, under the Clerk-depute's hand; and albeit the pursuer be not assigned to it per expressum, yet he being assigned to the debt, and to the bond, and to all right, title, and interest, that the cedent had, it will carry a right to the inhibition, and all legal diligence that has followed upon the bond, as being accessory thereto.—The Lords sustained the pursuer's title, although his assignation was only to the liferent, and did neither assign the inhibition per expressum, nor contained these general words, with all that has followed thereupon: And found the extract of the inhibition out of the books of the sheriffdom of Perth, under the hand of the pursuer's own depute, to be sufficient in the action of reduction; reserving improbation to the defender as accords.
Fol. Dic. v. 2. p. 250. Sir P. Home, MS. v. 1. No 80.
