Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Libberton and Wellwood v. Janet Pitcairn and George Home Town-Clerk of Edinburgh
Date: 22 November 1704 Case No. No 62.
One was, by the condition of a bond, only liable in case he should have intromitted with certain subject. Adjudication was led on the bond, without previous proof of intromission. The adjudication was allowed to subsist as a security.
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This was a reduction of Libberton's adjudication, on this ground of nullity, That it was led for a bond of provision of L. 10,000 Scots, bearing this express condition and quality, that he should not be liable in payment, unless he actually intromitted with as much of the heritable and moveable bonds disponed to him, as would extend to the said sum; but so it is, the decreet cognitionis causa and adjudication proceed without any trial or pobration of his intromission, and so are null; and the offering to prove it now is not sufficient, because, before any sentence could pass, it should have been instructed to the Lords, that the condition was purified; and as there could be no decreet for payment till then, so neither could they validly adjudge; for apprisings and adjudications in heritage are equivalent diligences to poindings of moveables, and none will affirm they could have poinded on this bond, till the condition was first instructed to have been implemented and purified, Answered, The foresaid quality of the bond laid no obligation to prove it, but only afforded the competitors an exception and defence, that he could not be liable, because he has not intromitted at all, or not to the value; and that being omitted, it is no nullity in Libberton's adjudication, seeing he offers yet to prove, that before he pursued, the condition was pursued by his uplifting more than the sum in the bond extends to, which is more than sufficient to support the diligence; 24th December 1703, Lockhart, No 83. p. 3886; and in a parallel case, 11th February 1680, Gordon contra Hunter, No 3. p. 170, an adjudication on a bond bearing requisition was sustained, though it did not mention previous requisition was used, seeing it was produced ex post facto, when the want of it was quarrelled; and the Lords have sustained adjudications on clauses of relief and warrandice, though the same were not incurred by distress, as is marked by President Falconer in November 1685, Burnet, No 12. p. 140. Replied, This way of arguing confounds pure and conditional obligements, taking away the difference betwixt them, and making them to have the same effect as to producing of actions; and indeed these topics from parallel cases are very inconclusive and fallacious. By an apparent resemblance of cases, men are led insensibly from things evidently reasonable to others as obvious absurdities. The Lords thought there was no reason to annul adjudications on such informalities as these; but being restricted to principal and annualrent, they might subsist as a security, though accumulations, penalties, and termly failzies might be cut off by such omissions; and therefore they sustained this adjudication so restricted; Libberton yet proving these actual intromission, prior to his decreet of cognition, with as much of the funds as the debt pursued for amounts to; and in case the probation shall fall short of that extent, then reserved to themselves to consider what should be the effect thereof.
Fol. Dic. v. 2. p. 307. Fountainhall, v. 2. p. 241.
