Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Maxwell
v.
Maxwell

1743, Feb. 15.
Case No. No. 36.

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An adjudication upon two debts of 500 and 490 merks being quarrelled, for that the bill at the Signet was only for one debt, and a summons never does pass upon two bills, and the Writers to the Signet certify that such is not the practice, and they doubted it could not be; at making this objection, a certificate was produced by William Roy to the Ordinary, that such a bill was at the Signet. But the Ordinary having desired to see the bill, it was produced before the Ordinary by Mr Roy, but who was not proper Keeper of the Signet. Thereafter that bill was also lost, or abstracted, and the case taken to report by the Ordinary. Most of us thought, though Roy was not the proper officer, that there being no complaint for more than a year after the bill was produced before the Ordinary, there was sufficient evidence that this bill was at the Signet; but Arniston doubted as to that. But the other point was more doubtful, and long and fully argued.—Arniston and President carried it so far as to doubt, whether an objection lay against any diligence for the want of the bills, the warrants of the summons or letters, at the Signet? but supposing they were, yet as this was after 20 years, when the party is not answerable for warrants,—and here there might have been a bill for the other debt, or the doer might, upon discovering his mistake, take a new bill of the same date for both debts;—though others observed, that if that was a good answer to an objection that any process was without warrant or disconform to the warrants, it would be so in every case after 20 years. However, it carried by the President's casting vote not to sustain the objection, even to open the legal of the adjudication. Kilkerran and Murkle did not vote, and Justice-Clerk was in the Outer-House.

We unanimously repelled another objection, that the libel of the adjudication in the first alternative libelled principal annualrent and a fifth more of penalty. 15th February, They adhered, and refused a bill without answers by the President's casting vote.—4th February 1743.