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M'Neill was thereafter charged, in the terms of the conclusions of the original action and decree, to make delivery of the whole writs and titles.
The Lord Ordinary pronounced this interlocutor, and added a note: ‘The Lord Ordinary having considered the closed record, with the productions, and inferior court process, and heard parties, repels the defences, reduces the decree of the Magistrates of the 28th of January, 11th and 16th March 1833, and decerns: Finds the defenders liable in expenses; appoints an account thereof to be given in; and when lodged, remits to the Auditor to tax the same, and report.’
The pursuer reclaimed . Their Lordships were of opinion that an heritable creditor was not entitled, in virtue of the assignation to the titles, to push his claim so far as to insist not merely for exhibition, but delivery of the titles. They considered the application too broad, and that the decree, in the terms of that application, upon which a charge had been given, could not be sustained.
The Court adhered , ‘but without prejudice to the defenders’ ‘legal right to call for exhibition, as accords of law,’ and found additional expenses.
Lord Ordinary, Cockburn. Act. M'Neill. Wm. Bell. Alt. Rutherfurd, J. M. Bell. A. Nairne, and M'Lean & Giffen, W. S. Agents. T. Clerk.
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