Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

David Hay
v.
Mr John Belshes

Date: 2 January 1673

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In an exhibition at the said David Hay's instance, as apparent heir to Sir Alexander Belshes of Tofts, for inspection of the said writs ad deliberandum,— it was alleged for the defender, That he had right to the said lands by adjudication, which had proceeded upon the renunciation of the pursuer's mother, who was the next apparent heir, whereof the legal was long since expired; so that his right, being a legal diligence, he was not obliged to exhibit the same; unless the pursuer would serve himself heir, and thereby be liable to the debt for which diligence was done.

The Lords sustained the defence, and found, That creditors, such as comprisers and adjudgers, who had acquired real rights by legal diligence, were not obliged to exhibit the same to the apparent heir of the debtor.

Thereafter it was alleged, by way of reply for the pursuer, That he offered to prove, by the defender's own oath, that the debt which was the ground of the adjudication was satisfied and discharged, and so could be no ground of the defence.

It was answered, That the allegeance of payment could not be proponed by an apparent heir in an exhibition ad deliberandum, against a singular successor; but the pursuer ought to be served heir, and pursue a declarator of reduction of the adjudication upon that ground.

The Lords, considering that exhibitions ad deliberandum were most favourable, and it being referred to the defender's oath that there was a discharge of the debt for which the land was adjudged, they did sustain the pursuit, in respect of the answer made to the reply; and ordained the defender to depone upon his having a discharge of the debt, and to exhibit the same, if it was in his possession, that the pursuer might advise if he would enter heir or not.

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