Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Competition Creditors of Eccles
Date: 11 February 1703 Case No. No 61.
A charge to enter heir in order to adjudge, was sustained, although at the instance of an assignee, whose assignation was posterior; as no execution followed till after the assignation.
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In a competition between Ker of Moriston and Pringle, Charles Ormiston, and other Creditors to Home of Eccles, Moriston objected against Pringle's adjudication, that it was null and informal, because he being constituted assignee to most of the debts for which it was led, he had raised his charge to enter heir against Eccles before he had got these assignations in his person, and so the charge was filius ante patrem. Answered, 1mo, He had a debt due to himself, which was sufficient to support the charge, that debt being antecedent thereto; 2do, Before the charge to enter heir was executed, he had all these assignations in his person, which was sufficient, the giving the charge being the true application of the diligence. Replied, They did not quarrel the adjudication as to his own debt, but only quoad those conveyed to him. 2do, The charge being the warant by which he was charged to enter heir, and these assignations being posterior to the date of the charge, they were unwarrantable and destitute of a warrant; and so the Lords found, 15th November 1666, Abercrombie, marked both by Stair and Dirleton, though Dirleton subjoins another between Kennedy and Hamilton to the same purpose, yet the first speaks only of an assignation taken after the summons was executed, see No 47. and No 48. p. 13277. The Lords dividedon the question, five against five, and the President for the time did cast the balance by finding the adjudication not null, though the charge preceded the assignation, seeing the execution on the charge was posterior, and so repelled the objection.
Fol. Dic. v. 2. p. 304. Fountainhall, v. 2. p. 179.
