A party was sued as lucrative successor, and assoilzied on proving an onerous cause. This found not to affect another creditor suing on the same grounds.
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Edmistoun of Carden being pursued by a Creditor of his father's, as lucrative successor to his father, by accepting of a disposition of his father's lands, after contracting of the pursuer's debt, alleged. Absolvitor, because, being pursued before by another creditor of his father's, he did then allege, that his disposition was not lucrative, but for a cause onerous, equivalent to the worth of the land which he proved, by instructing the rental and rate of the land at the time of the disposition by witnesses, and the sums undertaken for it by writ, whereupon he was assoilzied, and can never be again convened upon that ground; nam obest exceptio rei judicatæ; for if he had been condemned as lucrative successor, upon the other creditors' probation, it would now have proved against him, and therefore, his being assoilzied must be profitable to him against others, unless collusion were alleged and instructed. The pursuer answered, That this absolvitor was res inter alios acta; and albeit a condemnator would have been effectual against the defender, mm sequitur, that an absolvitor should also be effectual for him; because he was called to that condemnator, but this creditor was not at all called to the absolvitor. 2do, Even in a condemnator, if the defender had omitted any thing that he might have alleged in the one case, competent and omitted would not hinder him to propone the same against another creditor. Therefore, the defender can only repeat the grounds of that absolvitor; which, if he do, the pursuer will allege, that whereas, in the absolvitor, the defender was admitted to prove the rental, the pursuer omitted to crave the benefit of probation, which he would have gotten; and this pursuer offers him to prove, that whereas the rental was proved to be but 18 chalders of victual, the true rental was worth 30 chalders. 3tio, A part of the onerous cause was the portion of the defunct's children, which would not prejudge the pursuer, being an anterior creditor.
The Lords found, That the absolvitor could not prejudge this pursuer, as to these points omitted, and that it could not have effect inter alios, except it had been in re antiqua, where the witness had died; that in that case, the testimonies out of the former process might be repeated; but as to the rental, the Lords would not give the pursuer the sole probation, being so lubrick a point, as not only what it paid, but what the lands were worth, and it might have paid; and ordained witnesses to be examined binc inde; and found, that the bairns' portions not being paid bona fide, before the intenting of this cause, could not prejudge the creditor; but ordained the defender to suspend on double poinding against the pursuer and the bairns; but in regard of so much ground in the matter, they declared they would not sustain the passive title to make him successor universal, but only as to the just price, and the cause onerous.
