Scottish Court of Session Decisions

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

David Melvin
v.
Robert Carstairs

1687. January.

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An adjudication being quarrelled as null upon these grounds:—1. It could neither be sustained as a general nor as a special adjudication; not as a general, because it adjudges for a fifth part more, and for the composition to the superior, and expenses of infeftment, as the Act provides in the case of special adjudications; nor as a special one, since it proceeds not upon a special rental and probation. 2. The term of payment, of the sum adjudged for, is the next term after a liferenter's decease, which was not declared. Answered, The adjudication was led in the year 1679, when the Act was not fully understood; and, therefore, some escapes in form should be dispensed with. 2. The term of the liferenter's decease being libelled, and not denied by the debtor, who compeared in the process of adjudication, it needed not be proven. The Lords sustained the adjudication.

Nota. The Act of Parliament appoints the fifth part in special adjudications, to be the fifth not only of the principal, but effeiring to the principal and annualrents resting the time of adjudication, and stocked. 2. The clause of redemption provides nothing in relation to the fifth part of penalty, or expenses of adjudication, which yet in justice is due. But, in total adjudications, we adjudge ordinarily for principal, annualrents and penalty, all stocked the time of adjudication into a liquid sum; and also for the superior's composition, and the expenses of passing infeftment in general without liquidations, (which, by the Act, bears annualrent from the time of expending,) and total adjudications are declared, by the Act 1661, redeemable in all points as comprisings: and though there be no sheriff-fee due, yet, seeing, in 1661 the appriser had the penalty free, so now adjudgers ought to have expense of the decreet of adjudication and recording, &c. so as the penalty may be free.

Page 3, No. 11.