Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Aitchison's Assignees
v.
Drummond

1737, July 15.
Case No. No. 10.

Click here to view a pdf copy of this documet : PDF Copy

The Lords were clear that the contract 1675 was good against Brown and Miln, the onerous singular successors; also that it is not prescribed. They likewise agreed that Stewart's intromissions, (though he was one of James Pollock's successors) yet having right only to the half of the adjudication, could only be imputed to that half, and that the case had been the same though he had intromitted as pro-tutor to his sister-in-law, afterwards Aitchison's wife, unless he had truly been her tutor. They found also that Miln and Brawn's own intromissions must impute to Pollock's adjudication, and not to Pott's apprising, not only because as early as 1724, Sir Gilbert Elliot and Baird's rights to Pott's apprising, were preferred to Aitchison's; but likewise because the contract 1675 was effectual against them. But the greatest difficulty was, Whether Aitchison's oath was competent against them, the onerous assignees of William Murray, since his right from Aitchison bore to be love and favour. The Lords demurred upon this point, and delayed giving any interlocutor till next day, when they generally inclined to find it not competent on that ground; but then they found the subject had been litigious before Brown and Miln's purchase; upon that ground they found Aitchison's oath competent; and though at, first I thought it competent on the other ground, yet when I considered the first decision, finding a cedent's oath competent against a gratuitous assignee, which Stair observes, in 1665, I doubted whether the reasons of that decision would extend to an onerous purchaser from that gratuitous assignee.—15th July the Lords adhered, but remitted the point of collusion.—June 23-4, 1737.