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Scottish Court of Session Decisions >>
Anne Arbuthnot v Archibald Cockburn. [1789] Mor 14383 (27 November 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor3314383-024.html Cite as:
[1789] Mor 14383
Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. III.
General Disponee.
Anne Arbuthnot v. Archibald Cockburn
Date: 27 November 1789 Case No. No. 24.
Adjudication by a general disponee, without confirmation, in effectual, although preceded by a decree in foro.
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Mr. Cockburn, as the general disponee of his father, instituted an action of debt against the representatives of Archibald Allan. The defenders admitted, that the sums had been owing to the pursuer's father; but they contended, that the demand should be restricted, in consequence of certain claims of compensation.
Mr. Cockburn having obtained a decreet, proceeded, without being confirmed, to adjudge certain lands which had belonged to Archibald Allan; and this circumstance was urged for excluding him from any share of the price of these subjects.
It was considered in general as a fixed point, that a decreet obtained by a nearest in kin or general disponee, was incomplete without a confirmation; 26th February, 1782, Marshall contra Watson, (see Appendix), 26th November, 1784, Lenox contra Grant, No. 22. p. 14381. 28th June, 1785, Creditors of Park contra Maxwell, No. 23. p. 14382. The only doubt was, Whether the proceedings in this case importing a judicial acknowlegement of the pursuer's title, were not, with the decreet following thereon, to be held as equivalent to a bond of corroboration, so as to supersede the necessity of a confirmation, 19th June, 1782, Watson contra Marshall, No. 66. p. 7009. It seemed to be the opinion of most of the judges, that if the defenders in the action had agreed to dispense with the want of a confirmation the adjudication might have been sustained. But as nothing of this sort appeared,
“The Lords sustained the objection to the adjudication, and found that Mr. Cockburn was not entitled, in virtue thereof, to be ranked on the estate in question.”
Reporter Lord Henderland.Act. M. Ross.Alt. Abercromby.Clerk, Mitchelson.
Fol. Dic. v. 4. p. 269. Fac. Coll. No. 93. p. 169.
