Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Shearer v. Cargill
1686.
February. Case No. No 3.
An assignee pursues adjudication of part of his cedent's wife's tocher. The cedent had not performed his part of the contract. The adjudication allowed to proceed under the burden of the obligations in the contract.
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Peter Shearer, as assignee by James Bell, to a part of his wife's tocher, due by Thomas Cargill of Auchtiedonald, having pursued an adjudication against Auchtiedonald: Alleged for the defender, That adjudication could not proceed for the sum, nor was he liable to pay the same, before James Bell, the cedent, did secure his wife in a liferent provision, conform to the contract of marriage; for the obligement in the contract being mutual, as the cedent could not seek payment, nor adjudge for the sum before first he performed his part of the contract, so neither can Peter Shearer the assignee. Answered, That the assignation being granted to the pursuer for an onerous cause, he may seek payment and adjudge for the sum, albeit the cedent has not performed his part of the contract, as has been several times decided, and the wife's friends may go on in diligence against James Bell the cedent, for fulfilling his part of the contract, as accords.
The Lords allowed the adjudication to proceed, but with the burden of the obligement of the contract of marriage in favours of the wife.
Fol. Dic. v. 1. p. 11. Sir Pat. Home, MS. v. 2. No 782.
