Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Dooly
v.
Dickson

Date: 13 February 1740

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The Lords differed upon the question, whether an adjudication upon a special charge, carried bygone rents due between the predecessor's death and the date of the adjudication.

It was by several of the Lords thought, that though an adjudication upon a cognitionis causa did carry such bygones, as affecting the hereditas jacens, and carrying every thing which would have been carried by the heir's service; yet where the adjudication proceeded upon a constitution and special charge, it carried only right to the particular subject adjudged, and of course to the mails and duties from its date.

That such only was the effect of comprisings before the 1672; and the case must be the same of adjudications, which are come in place thereof. That there is no difference in this respect between an adjudication on a special charge on the apparent heir's proper debt, and where it is on the predecessor's debt; for whereever a constitution is obtained, the debt becomes the proper debt of the apparent heir, and it would be singular, that an adjudication for the proper debt of the apparent heir should carry bygones due prior to its date.

Notwithstanding, the contrary opinion prevailed; and it was found, “that the adjudication on a constitution and special charge, carried the bygones since the death of the predecessor.”

There appeared to be no habile method of affecting such bygones, but by adjudication ; wherefore, though a comprising before the 1672 might not carry bygones, but that an extraordinary adjudication was necessary to carry these, yet now, that adjudications are come in place of comprisings, it was thought that no more was necessary than one adjudication to carry both the land and bygones.

Kilkerran, p. 4.