A pursuer may mend his libel, though the days of compearance are wrong filled up, if the induciæ are elapsed before calling the cause.
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Ochterlony having raised a process of sale against Sir George, executed the same on the 2d of November 1737, warning him to compear upon the days contained in the said summons, which were the first and last of November.
Objected, 1mo, That the execution was null, seeing the first diet of compearance ought to have been twenty-one days after the date of the execution; whereas here the defender was cited to compear to a day, de facto, past, when the summons was executed, thereby not only abridging him of the common induciæ, but likewise commanding him to do an impossible thing, 2do, The pursuer's title being a naked decreet of adjudication, without either infeftment or charge against the superior, could not, by the act 17th Parliament 1681, entitle him to carry on this process, as that law requires the creditor to have a real right, which an adjudication is not; the same being only a legal disposition in security, which makes a good assignation to the mails and duties, but is no real lien upon the land until it be followed forth by infeftment.
Answered to the first, That the summons (as is customary, where there are several defenders) was left blank when it was executed, and, after it was returned, the pursuer's doer, by mistake, filled up the first and last days of November, instead of the 24th of that mouth, and 2d of December thereafter; but the mistake could be of no avail; for, as the defender had the full induciæ before the cause was called, the pursuer should be allowed to mend his libel. And, as to the second, it was answered, That the term real right, in the act, means an adjudication, without either charge or infeftment; as is evident from the words, “Our Sovereign Lord considering, that, when the estates and lands of bankrupts are affected with adjudications, comprisings, and other real rights,” &c. Besides, by the act of sederunt 23d November 1711, it seems to be supposed that a naked adjudication is a sufficient title in a process of sale.
The Lords allowed the pursuer's procurator to amend the libel with respect to the filling up of the days of compearance therein, and repelled the allegeance against the pursuer's title, sustained the libel and active title libelled on, &c.
