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Scottish Court of Session Decisions >>
The Children of Bangor v Duke and Duchess of Hamilton. [1686] Mor 13285 (00 March 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor3113285-058.html Cite as:
[1686] Mor 13285
Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
The Children of Bangor v. Duke and Duchess of Hamilton
1686.
March. Case No. No 58.
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An adjudication led by the Duke of Hamilton being quarrelled as null and informal by another adjudger, because, 1mo, There being a summons against the defunct's debtor's son, containing both a transferring of an act of count and reckoning against the father, and a charge to the son to enter heir, for payment of the debt libelled in the principal summons; and the son having renounced to be heir, the pursuer took out a decreet cognitionis causa for payment, without extracting a distinct sentence of transference, as he ought to have done; 2do, The decreet was extracted upon a licence to pursue without confirming the debt, whereas the licence was conceived excludendo sententiam.
Answered; The diligence is formal, in so far as, 1mo, The same hath proceeded upon a sentence both in the transference and cognitionis causa; and the Lords use not to loose adjudications upon such a nicety; 2do, It is only the interest of the Commissaries to quarrel the not confirming before extract; and the Duke could not confirm, not knowing if he would recover payment by the diligence; but, upon payment, he is content to confirm, and grant discharge.
The Lords would not annul the Duke's adjudication, but allowed the pursuer to debate against the debt and ground thereof, and sustained the adjudication only in quantum the debt adjudged for was not convelled, and declared it current and redeemable.
Fol. Dic. v. 2. p. 307. Harcarse, (Comprisings.) No 321. p. 79.
