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Scottish Court of Session Decisions >>
Fergusson v Heron. [1750] Mor 5745 (24 February 1750)
URL: http://www.bailii.org/scot/cases/ScotCS/1750/Mor1405745-024.html Cite as:
[1750] Mor 5745
A bill of horning cannot be stopped upon any objection to the debt, tho' ever so relevant and verified.
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Heron of that ilk, becoming purchaser of the lands of Clouden, at a judicial sale before the Lords, Fergusson of Halhill, was, by the decree of division entitled to draw L. 4346 Scots; and he having presented a bill of horning, in order to charge for payment, Heron appeared before the Ordinary on the bills, and alleged that Halhill's adjudication was founded upon two debts, to one whereof he had only an assignation under back-bond, obliging him to communicate to his cedent the adjudication to be led by him, so far as concerned the debt assigned; which back-bond Heron produced for instructing his allegeance, together with a conveyance thereof in his favour, and pleaded that horning should only be allowed to go out against him for so much of the sum as corresponded to Halhill's own debt, and that the bill should be passed only for the proportion of the sum corresponding thereto.
To which it being answered; That it was a novelty in form to make such objection to a bill of horning; that the creditor was entitled to have out his diligence for the whole sum decerned by the decree of division, and that the proper method for Heron to obtain a judgment upon his objection, was to apply by bill of suspension; the Ordinary “found the objection not competent, reserving to Heron to suspend as accords;” and the Lords “adhered.”
Fol. Dic. v. 3. p. 275. Kilkerran, (Horning.) No 1. p. 255.
