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Scottish Court of Session Decisions >>
Thomas Buchanan of Sandside, v The Marquiss of Montrose. [1707] Mor 196 (19 March 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor0100196-011.html Cite as:
[1707] Mor 196
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Thomas Buchanan of Sandside, v. The Marquiss of Montrose
Date: 19 March 1707 Case No. No 11.
Adjudication is led on an apparent heir's bond. A third party offers instantly to show, that the heir's interest in the estate is excluded. The adjudication passes, reserving that party's interest contra executionem.
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Thomas Buchanan having obtained a decreet of adjudication of the estate of Buchanan, upon a bond granted by Janet Buchanan of Leny, apparent heir to the deceast Laird of Buchanan; the Marquiss of Montrose craved it might be stopped, in respect he was content instantly to debate and exclude the apparent heir's interest in that estate.
Answered for Sandside, 'Tis a novelty to stop a decreet of adjudication at the instance of a third party upon pretence of excluding the debtor's right: For an adjudication is the only title whereby the creditors of an apparent heir can quarrel third parties pretences, or force a production of their rights. Yea, the debtor himself has not been allowed to propone defences to exclude adjudication, and hinder completing of the diligence: Much less can any third party pretend interest; and if it were otherways, it would be very inconvenient to creditors whose diligences are preferred according to dates.
The Lords allowed the adjudication to go out, reserving the Marquifs's interest contra executionem.
