Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. VI.

Defences.

Burnside
v.
Crawfurd

Date: 13 July 1688
Case No. No 146.

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In a reduction and improbation at the instance of a posterior against a prior appriser;

Alleged for the defender, No process; because the pursuer was not infeft.

Answered; It was not necessary for the pursuer to take infeftment, his right being only an apprising of the legal, especially if the lands held ward.

Replied; No person but he that is infeft can reduce rights that are real by infeftment, or pursue removings; although a bare comprising may be a title to call for production of contracts, or personal rights; nor is the pursuer within year and day of the first effectual apprising.

The Lords sustained the allegeance and reply for the defender.

Thereafter the pursuer alleged, That this is a dilator, which cannot be proponed now, after the taking of terms; which the Lords found relevant, and repelled the defence in hoc statu processus.—See Title to Pursue.

Fol. Dic. v. 2. p. 186. Harcarse, (Improbation, &c.) No 581. p. 162.