The Lord Borthwick v Andrew and Mr Mark Kerrs.

Factual and Procedural Background

The Appellant pursues a reduction ex capite inhibitionis against two Defendants regarding a disposition made by a third party, who was inhibited at the instance of the Appellant prior to granting the disposition. The Appellant was made assignee of the grounds of this inhibition. The court found no process because the representatives of the third party were not properly called in the current process, despite having been called in a related summons of transferring the same process, which was deemed insufficient.

The Appellant further pursues a reduction ex capite inhibitionis of all rights made by the third party to the Defendants concerning certain lands. The Defendants alleged no process due to the absence of representatives for the third party who were bound in warrandice and ought to have been called. The Appellant responded that the reduction was not sought against the third party's own right but against the rights granted by the third party to one of the Defendants, who was common author to both rights. The court again found no process until the warrant was called.

Legal Issues Presented

1. Whether a reduction ex capite inhibitionis can be pursued against dispositions made by an inhibited party without properly calling the representatives of that party in the process.
2. Whether the absence of representatives bound in warrandice affects the validity of the process in pursuing reduction of rights granted by the inhibited party.
3. Whether the reduction sought pertains to the third party's own rights or to rights granted by the third party to others, and the procedural implications thereof.
4. Whether a warrant must be called before proceeding with the reduction process.

Arguments of the Parties

Appellant's Arguments

• The reduction is sought on the basis that the third party was inhibited before granting the disposition, and the Appellant was assigned the grounds thereof.
• The reduction is not against the third party's own rights but against rights granted by the third party to one of the Defendants, who shares common authorship.
• The Defendants may raise pleas regarding warrandice, but that does not negate the necessity to proceed with the reduction.

Defendants' Arguments

• No process was validly constituted because the representatives of the third party, who were bound in warrandice, were not called as required.
• Historically, processes were sisted until warrants were first discussed; thus, the warrant should be called before proceeding.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasized the procedural necessity of calling the representatives of the inhibited party who are bound in warrandice before any process can be validly constituted. It found that merely calling these representatives in a related summons was insufficient for the current process. The court also underscored the historical practice that warrants must be called and discussed before proceeding with reduction actions. The Appellant's distinction between reducing the third party's own rights and reducing rights granted by the third party was noted, but the procedural deficiencies regarding representation and warrant calling remained decisive. Consequently, the court found no process until these procedural requirements were met.

Holding and Implications

The court found no process in the reduction ex capite inhibitionis pursued by the Appellant due to the failure to properly call the representatives of the inhibited party and the warrant. The direct effect is that the reduction actions cannot proceed until these procedural steps are fulfilled. No broader precedent was established beyond reaffirming the necessity of these procedural formalities in such cases.