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Scottish Court of Session Decisions >>
The Creditors of Bailie Ogilvy Competing. [1744] Mor 5198 (28 November 1744)
URL: http://www.bailii.org/scot/cases/ScotCS/1744/Mor1305198-032.html Cite as:
[1744] Mor 5198
Subject_1 GROUNDS and WARRANTS. Subject_2 SECT. V.
Grounds and Warrants of Decrees.
The Creditors of Bailie Ogilvy Competing
Date: 28 November 1744 Case No. No 32.
To support a decree-arbitral, the defender is not bound to produce grounds and warrants.
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John Ogilvy, bailie-depute of Cupar in Angus, his lands were adjudged by some of his creditors before the Lords of Session, and by others before the Sheriff of Perth, within which jurisdiction they lay. Afterwards there was a submission entered into by Thomas Ogilvy merchant in Dundee, who had purchased the estate, the several creditors, the heir of the common debtor, and generally all having interest; and the arbiter ranked the adjudgers pari passu.
The adjudgers before the Court of Session raised a reduction and improbation of the warrants of the decreets before the Sheriff, which did not appear, and attempted to set aside the decreet-arbitral, as proceeding on forged grounds; the question was, If the presumptive falsehood from a certification, should have that effect?
The Lords, November 2d, ‘Found it not competent to quarrel the debts and diligences of the defenders, which had been sustained and ranked by the arbiters, there being no direct evidence of actual forgery offered.’ And this day, on a reclaiming bill and answers, in which sufficient evidence of the actual forgery was not offered, ‘they adhered.’
Act. Arch. Hamilton.Alt. Graham, sen.Clerk, Gibson.
Fol. Dic. v. 3. p. 255. D. Falconer, v. 1. p. 11.
