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Scottish Court of Session Decisions >>
Eleis of Southside v Mark Cass of Cockpen. [1666] Mor 10433 (24 January 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor2510433-010.html
A curator, who had apprised the minor's lands, found not entitled to impede the diligence of another creditor.
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Eleis of Southside pursues Cass, as heir to Mr Richard Cass, or as being charged to enter heir to him. Compearance is made for Cockpen, who was a creditor to the defender, and had apprised his lands; and alleged, No process; because the pursuer pursues as assignee: The assignation being his title, is posterior to the charge to enter heir, or summons which are raised, not in the cedent's name, but in the assignee's. It was answered for the pursuer, That Cockpen could not object this, because he was curator to the pursuer, and had apprised the lands, and proponed this allegeance of purpose to exclude the pursuer from coming in within year and day; because, if this summons were cast (the defender being now out of the country) before a new charge to enter heir could proceed upon 60 days, and citation upon 60 days, and the special charge upon 60 days, the year would elapse. It was answered, That Cockpen had never acted as curator, and that this summons was raised by the pursuer himself, after his majority, who was major more than a year ago. It was answered, That the pursuer had but very lately recovered his writs from his curators, tho' he used all diligence, and was forced to transume against some of them.
The Lords sustained the summons, in respect Cockpen had been curator, and so near the time of minority.
