Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
James Dunbar, and his Assignees, v. James Earl of Morton
Date: 20 July 1714 Case No. No 68.
Found in conformity with Inglis against Lord A. Hay, No 66. p. 13293.
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In the action of mails and duties, at the instance of James Dunbar, and his Assignees, against James Earl of Morton, and his Tenants of Orkney, the pursuer's title, which was an extract of an heritable bond, granted by William Earl of Morton and Robert Lord Dalkeith, his son, to Mr Andrew Dick, with a charter of resignation, and sasine thereon, being quarrelled by the defender, because the said extract was grievously torn and lacerated in many places, so as it could not be read; the pursuer, to supply that defect, raised and executed a summons, for proving the tenor of the principal bond, which they craved might be summarily and incidenter received; especially considering that such actions used to be received incidenter, even when the tenor of a whole writ is to be made up; and in the case of the Lady Eccles, See Appendix, the Lords allowed two full sheets of a disposition to her by young Leny to be supplied by the oaths of two instrumentary witnesses, upon a supplication at her instance; and much more in this case, a few words lacerated and torn, by much using and careless keeping, ought to be allowed to be made up summarily, when the adminicles are most pregnant, and all in the field.
Answered for the defender; The pursuer cannot be admitted to support or supply his title by an incident proving of the tenor; because, 1mo, Though defenders in improbations have been allowed to repeat provings of the tenor incidenter, and have got time for that effect, and defenders have been allowed to repeat a proving of the tenor, to prevent the hardship of a res judicata against them, upon competent and omitted; no person was ever allowed, in any case, to support the active title of his own process, by an incident proving of the tenor; seeing pursuers ought to come parati, and to have a sufficient well connected progress of right, before they commence their process; as was decided, 2d July 1709, in the case betwixt Mr John Inglis and Lord Alexander Hay, No 66. p. 13293. where the pursuer, for that very same reason, was not allowed to repeat incidenter a proving the tenor of a precept of clare constat, necessary for supporting his title; 2do, The tenor of a bond was never admitted to proof, without calling the heirs and executors of the deceased debtor; 5th March 1628, Hammermen in Glasgow contra Crawfurd, No 130. p. 2247.; and here, neither heir nor executor of the granter of the bond under debate is cited.
Replied for the pursuer, 1mo, A proving of tenor being an accessory action, brought in to adminiculate and support other actions, should be admitted incidenter; 2do, The Earl of Morton, apparent heir to the granter of the bond, is in the field, and though there may be executors or nearest of kin concerned, the pursuers take their hazard, and seek it may be only res judicata quoad the Earl.
The Lords refused to admit the action of proving the tenor incidenter.
