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Scottish Court of Session Decisions >>
Sir Thomas Maxwell v James Paterson. [1751] Mor 176 (10 December 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor0100176-010.html Cite as:
[1751] Mor 176
Subject_1 ADJUDICATION and APPRISING. Subject_2 FORMALITIES of the DILIGENCE.
Sir Thomas Maxwell v. James Paterson
Date: 10 December 1751 Case No. No 10.
A party obtained decree for two bonds. In a special charge, he narrated the bonds, and not the decree. Adjudication notwithstanding sustained; the decree having been prior to the charge.
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James Paterson of Whiteside, pursued Alexander Murray of Drumstenchall, for two bonds granted by his predecessor, for which he obtained decreet before the stewart of Kirkcudbright; and charged him to enter heir in special, narrating in the letters the bonds, but omitting to mention the decreet: And afterwards led an adjudication, founding on the decreet and special charge.
Objected for Sir Thomas Maxwell of Orchardtoun, a postponed adjudger, the adjudication is null; the special charge, which was the ground of it, proceeding only on the bonds, and not on the decreet, whereby the defender became liable therein: It is not enough a person have in him proper titles to support his diligence, if he do not found it upon them.
The Lord Ordinary, 26th November, ‘Having considered the objection, together with the letters of special charge objected against, and the decreet of constitution; repelled the objection, that the said decreet of constitution was not narrated in the letters of special charge, in respect that the same was obtained prior to the date of the said letters.
And the Lords refused a bill, and adhered.
Pet. A. Pringle.
Fol. Dic. v. 3. p. 7. D. Falconer, v. 2. No 246. p. 301.
