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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aitken v Adamson [1838] CS 16_1135 (12 June 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1135.html Cite as: [1838] CS 16_1135 |
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Page: 1135↓
Subject_Process—Citation.—
Action of multiplepoinding dismissed as to certain Objectors, nominal raisers, whose names were not inserted in the libel until after the summons had been signeted and served on the common debtor and one of the nominal raisers; and who, moreover, were called as the representatives of a deceased party, without calling the oldest son and heir of that party.
In December, 1837, a multiplepoinding was raised by Lady Anstruther, relict of Sir Alexander Anstruther, in name of William Aitken and others, tenants of part of the estate of Thirdpart, belonging to Major Robert Anstruther, which was burdened with an annuity in favour of Lady Anstruther. The late John Adamson, who died in 1835, had been one of the tenants on that estate. His lease expired at Martinmas, 1837. Lieutenant John Adamson, R.N., was the oldest son of John Adamson. D. M. Adamson and others were the younger children. The summons of multiplepoinding was signeted on December 11, 1837, and was served, on the same day, on James Renton, accountant in Edinburgh, the trustee of Major Anstruther the common debtor. It was also served on one of the nominal raisers on that day. Two days afterwards the names of D. M. Adamson and the other younger children of John Adamson were inserted in the libel, and the summons was subsequently called, as on the short induciæ of six days notwithstanding an intimation by D. M. Adamson and the other younger children, that it was necessary for them to consult with Lieutenant Adamson in England; that he ought to be called, and on edictal induciæ; that there was a fatal irregularity committed as to D. M. Adamson and the younger children in respect they were not set forth among the nominal raisers, either when the summons was signeted, or when it was served on the common debtor, or on one of the other nominal raisers; and that these objections would be insisted in, unless the edictal induciæ were allowed. This was declined, and D. M. Adamson and the younger children lodged objections on the grounds now stated.
The Lord Ordinary “sustained the foregoing objections for D. M. Adamson and others; dismissed the action quoad them, and decerned, and found the said D. M. Adamson and others entitled to expenses.”
Lady Anstruther, the real raiser, reclaimed, and contended that as the parties on whom the summons was served, before the names of D. M. Adamson and others were inserted, did not object to their citation as insufficient, any objection thence arising was cured. D. M. Adamson and the other younger children answered that this applied to only one of their objections, and could not obviate even that, as in a question with them.
The other Judges concurred, and
The Court adhered, and awarded additional expenses against the reclaimer.
Solicitors: D. M. Adamson, W.S.— Thomson Paul, W.S.—Agents.
