Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Creditors of Maxwell, viz Brown, &c.

1737, July 22.
Case No. No.12 and No.13.

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A Decreet of constitution being pronounced 30 years ago, by special warrant from the Inner-House, that the creditor might adjudge, in order to come in pari passu with a prior adjudger, without any proof of the passive titles, and being now quarrelled because there is no proof of the passive titles, and the creditor producing a general charge prior to the decreet; the Lords would not sustain that general charge as a passive title, because it was not libelled in the process of constitution; but they allowed the creditor yet to support his diligence by proving the other passive titles, notwithstanding the defender in that decreet is now dead.

In the same process, an objection against another adjudication led about 30 years ago, that the special charge was not executed against the tutors and curators, at least neither the libel nor decreet of adjudication bear so, nor are these letters or executions now produced;—the Lords sustained the objection, but not to reduce the adjudication in toto, but to restrict it to a security;—22d July, Brown of Mollance found he could have no proof of the passive titles, and therefore gave up the adjudication, and the Lords accordingly found it null, and adhered to the former interlocutor, as to the other adjudication.—8th June,—22d July 1737.