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The Creditors of Roderick Forbes of Brux, v Sir James Gordon of Park, and James Erskine, brother to Pittodrie. [1724] Mor 127 (12 June 1724)
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[1724] Mor 127
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[1724] Mor 127
Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
The Creditors of Roderick Forbes of Brux, v. Sir James Gordon of Park, and James Erskine, brother to Pittodrie
Date: 12 June 1724 Case No. No 38.
An adjudication annulled, because the sums were not in the adjudger's person, at the time of charging the debtor's representative to enter heir in general.
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In the ranking of the creditors of Brux, it was objected to the adjudications produced by Sir James and Mr Erskine, 1mo, That they were led for sums which were not in their persons, at the time when they charged their debtor's representative to enter heir in general to him; and therefore, as to such sums, they were void. 2do, That the charter from the King, under the Great Seal, upon Mr Erskine's adjudication, was void, as slowing a non habente potestatem, in respect that the lands held of the late Earl of Mar; and on the 18th June 1718, at which time the charter was expede, the rights belonging to the said Earl, were, by the act Quarto Georgii, vested in the person of the Commissioners of Enquiry.
The Lords sustained both objections.
Act Alex. Nairn.Alt. John Ogilvie.Clerk, Mackenzie.
Fol. Dic. v. 3. p. 4 Edgar, p. 48.
