Turpis Causa; - Proof of the Tenor, - how Proponabe.
Mr James Inglis v. Dame Margaret Charteris and Lord Alexander Hay, her Husband
Date: 26 June 1712 Case No. No 81.
It was objected against the proving of the tenor of a writ, that it was innovate and extinguished. The Lords repelled the objection hoc loco, reserving to the defender to be heard thereon in any action to be raised upon the decree of tenor, in case it should be obtained.
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Mr James Inglis of St Leonards pursues a proving the tenor of some writs against Dame Margaret Charteris, and Lord Alexander Hay of Lawfield her husband. The writs were an instrument of sasine of one Mr Patrick Kelly, taken on an heritable bond, granted by Mr Cornelius Inglis of Eastbarns in 1660, for 4600 merks to be lifted out of that part of these lands called Purvesdale. Item, A precept of clare constat, granted by Mr Patrick Inglis as superior, to Janet Kelly, daughter and heir to the said Mr Patrick Kelly. Item, A sasine following thereon. For astructing the tenor these adminicles are adduced: The extracts of the sasines out of the respective registers where they stand recorded: The heritable bond, their warrant: Item, A decreet of poinding of the ground on these sasines; and a preference to the creditors of Eastbarns. Alleged, The documents were neither relevant, nor concluding; for, 1mo, Though the principal sasines were produced, and on the clerk's table, (whereas here be only extracts) they are nowise probative, being merely the assertions of a notar, in whose power law never put the making up of real rights to lands; likeas, the precept of clare constat is null, not bearing the designation of the writer, though posterior to the 5th act 1681; for it only says, ‘Wrote by one, servant to Archibald Nisbet,’ without telling who this Nisbet was; and to condescend now that it was (Archibald Nisbet) writer to Signet, cannot be received, it being declared a nullity unsuppliable by the foresaid act. 2do, The precept is given by Mr Patrick Inglis the debtor's apparent heir, and so is a passive title. 3tio, It appears by Dr Oswald's oath, taken in this process, that the grounds of this debt were in the common debtor Mr Patrick's hands, and so instrumentum apud debitorem and presumed retired; though by a contrivance betwixt him and this pursuer, his brother, it was resolved to be kept up and revived, to debar true and lawful creditors. Answered, The adminicles produced were incontestably pregnant; for, though a sasine alone be not sufficient, yet, conjoined with other presumptions, it has been sustained as a good document. And as to the nullity in the clare constat, the designation seems abundantly to certify the writer; and esto it did not, yet being only in a step of the progress, and connection of the title, it is no way material: And as to the granter's being apparent heir, and colluding fraudulently with his brother, it is evident he did it by a singular title, viz. a base infeftment clad with possession, preferable to the creditors' diligence: And it appears by a decision in Stair, Inglis contra the Tenants of Eastbarns, No 54. p. 1324. that he was upon that right preferred to Mr John Inglis of Cramond, an annualrenter infeft in these same lands: And though it was objected, that he was not the true superior to give any precepts, be being denuded by apprisings and adjudications, yet this was repelled, seeing they were expired, and he, within the legal, was not fully divested, but he might enter and receive the vassals.——The Lords found the tenor sufficiently made up by the writs produced; yet so as he behoved to take it as it stood, with the pretended nullity in the clare constat. And found the objections on the collusion, and its being retired, not competent against the tenor; but reserved them by way of reduction.
Fol. Dic. v. 1. p. 176. Fountainhall, v. 2. p. 744.
