Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Ross
v.
Creditors of Easterfern

1747, Nov. 6.
Case No. No. 38.

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

The Lords nemine contradicente, adhered to Drummore's interlocutor, sustained an adjudication as a security for the sums truly due, even in a ranking of creditors, though for near eight times as much as was due, viz. L.9540, though there was a settled account before, making the sum due only L.1284. My reasons were;—that reducing it in toto, was penal and contrary to equity; that a decreet of constitution would be so restricted and sustained, and I saw no difference now betwixt a decreet of constitution and adjudication; that when no more was apprised than lands equal to the sum, and that by a sworn inquest, a pluris petitio behaved to be a total nullity, because not only the sum must be restricted, but some of the lands struck off, which could only be done by a new inquest; that by regulation 1695, decreets were only to be reduced on nullities, to repone against the injury done, and no further; and that this adjudication was a decreet in foro contentioso, where every objection was either competent and omitted, or proponed and repelled; and we could repone against it only in equity, and that equity could not annul it altogether. Arniston added, that special adjudications must, as to this point, be in the same case with apprisings of old, and that he always was against annulling such adjudications altogether, and against sustaining them for accumulations