Scottish Court of Session Decisions

Subject_1 PERSONAL OBJECTION.

Hugh Wallace of Ingliston
v.
The Creditors of Spot

Date: 10 February 1710
Case No. No 20.

A creditor at whose instance his debtor was denounced, having consented to his relaxation, was not allowed to quarrel the same upon account of any nullity or informality, whatever a third party might do.

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In the ranking of Spot's Creditors contained in Lord Alexander Hay's backbond to the Exchequer, upon his getting the gift of the common debtor's escheat, Ingliston craved preference for the debt in the horning upon which the escheat fell, in the terms of the act of Parliament.

Alleged for the other creditors; No respect can be had to Ingliston's horning, because the rebel was duly relaxed before the casuality fell; and therefore the gift of escheat must be understood to have proceeded upon denunciation at the instance of other creditors.

Answered for Ingliston; The relaxation is null by the act 75. Parl. 6. Ja. VI., being executed at the cross of Edinburgh, albeit the rebel was denounced at Haddington, where his lands lay. Ingliston's consent to relaxation imports only, that per eum non stetit, if Spot was not lawfully relaxed; which not being done, the relaxation and consent fall of course.

The Lords found Ingliston's consent to the relaxation relevant to exclude him personali objectione from quarrelling upon the account of any nullity or informality, whatever a third party might do.

Fol. Dic. v. 2. p. 81. Forbes, p. 398.