Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

John Geddy
v.
Patrick Telfer

1681. December.

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An adjudication against one Geddy, that was out of the kingdom, being quarrelled as null, for that the citation in the summons was not given upon sixty days at the market-cross of Edinburgh and pier of Leith;—it was Alleged for the adjudger, That the debtor had ratified the decreet of adjudication, and so had passed from an informality or nullity therein. Answered, The adjudger gave a back-bond, the time of the said ratification, to allow all things to the debtor that could be acclaimed by law, reason, or equity, which took off the total effect of the ratification. 1. The Lords sustained the ratification to make the adjudication subsist; but that the effect of the said ratification was elided and taken off by the back-bond. 2do. The said adjudication was alleged to be null, for that it adjudged for a fifth part more than was due, which was pluris petitio. Answered, The adjudger had libelled a fifth part more, not knowing but the debtor might have appeared and produced a progress; in which case, the Act of Parliament allows to adjudge for an additional fifth part; and the clerks, at the beginning, before the import of the Act was well understood, used to extract for the superplus fifth part, even in absence. 2. The Lords, in respect of the clerk's mistake, did not find the adjudication simply null, but restricted it to the principal annual-rent and composition to the superior, without allowing accumulations, or any expenses of leading the adjudication: and in this they had respect to the voluntary ratification above mentioned, which would have made the adjudication subsist to all effects, had it not been for the adjudger's back-bond.

Page 64, No. 270.