Subject_1 ADJUDICATION and APPRISING. Subject_2 FORMALITIES of the DILIGENCE.
Forbes of Culloden and Others, v. The Representatives of Dawson of Hempriggs
Date: 6 July 1755 Case No. No 13.
An adjudication found null; the decree of constitution having proceeded on a general charge to enter heir to a father, instead of the grand-father, who had been the proper debtor.
Click here to view a pdf copy of this documet : PDF Copy
In the ranking of the creditors of Clava, it was objected to an adjudication, That it proceeded upon decreets of constitution taken against an infant grand-son, upon a general charge to enter heir, not to his grand-father, who was the debtor, but to his father, against whom the debts had never been constituted.
Pleaded for the adjudger, That the summons of constitution did particularly set forth the grounds of debt, viz. bonds and bills granted by Hugh Ross of Clava, in the 1716; and though, by mistake, he is called the defender's father, whereas truly he was his grand-father; yet, as both were of the same name, that erroneous addition, with respect to the relation he stood in to the defender, cannot hurt the diligence, he being sufficiently described as granter of the bonds and bills; and as the defender knew this description could only apply to his grand-father, he was therefore fully certiorated of the person to whom he was to enter by that description; and utile per inutile non vitiatur. 2do, Hugh Ross the father, was liable passive to the grand-father's debts; and though the grand-son had only been charged to enter heir to his father; yet he would, by not renouncing, have become liable for all the debts due by the father, whether of his own contracting, or as representing the grand-father. 3tio, At least the adjudication ought to be sustained as an adjudication cognitionis causa, agreeable to the decision 27th February 1684, Dunlop against Brown, (See p. 46. Quarto Dictionary,) and to the judgment given in a late case, in the ranking of the creditors of Kinminity.*
Answered for the other creditors, That there was undoubtedly a very material error in the form of leading of this diligence, which must be fatal to it in a competition among creditors; and that there was something more here than a mistake of the designation: For, in the letters of special charge which followed upon the decreets of constitution, the grand-son is charged to enter heir to both father and grand-father. To the second. That the passive title there mentioned, might have availed to establish these debts passive against the father, either upon a charge to enter heir, or upon a proof of the passive titles; but they having never been constituted against him, could not, by any form known in the law, be transferred against the infant grand-son, upon a general charge to enter heir to him. To the third, That the cases quoted are foreign to the purpose. In them the decreets of constitution were in every respect, regular and formal, but were obtained against infants in absence, who were therefore entitled to be reponed in so far as they had not renounced, but no farther; as upon a renunciation being produced, decreet of constitution must have gone forth against them: But here the decreets of constitution are funditus void, as proceeding upon an erroneous general charge.
‘The Lords found the decreet of constitution void, and consequently the adjudication following thereon null.’
Act. Lockhart.Alt. Brown & Ferguson.
Fol. Dic. v. 3. p. 7. Fac. Col. No 155. p. 233.
* There is a case in this ranking, collected p. 129. of this Volume, and another under Husband and Wife. See General Alphabetical List of Names.
