Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Creditors of Provost Cunningham v. Montgomerie
Date: 3 July 1739 Case No. No 23.
An adjudication restricted to a security, on account of a pluris petitio, proceeding from mere oversight.
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Two parties being bound in a bond, containing an obligement to relieve one another, pro rata, one of them paid the debt, took an assignation to the whole, and thereafter a decreet of cognition, against the other party's heir for the one half. But, in the adjudication, which narrated the assignation and decreet of constitution, the lands were adjudged for payment of the whole sum. In a ranking, the other creditors objected this pluris petitio, and insisted to have the adjudication reduced in totum. The Lords considered this as an innocent mistake, and sustained the adjudication as a security for the principal sum, and annualrents, truly due, to be accumulated at the date of the adjudication, but without penalties, or even necessary charges *.
Fol. Dic. v. 1. p. 8.
* This case is thus stated by Kilkerran:—One of two parties, bound in a bond, having paid the debt, and taken assignation to the whole, and a decree, cognitionis causa, against the heir of the other for the half; obtained thereupon a decree of adjudication; wherein, though the decree cognitionis causa, which decerned, as has been said, only for the half, was, among other grounds of debt, libelled on; yet, in extending the accumulated sum, the whole of this debt was taken in.—This, the other creditors insisted on, in the ranking, as a total nullity; but as it was obvious, that this had been a more oversight in the writer, the adjudication was sustained, only as a security for the principal sum, and annualrents, truly due, accumulated at the date of the adjudication, but not even for necessary charges.
