Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
The Apparent Heir of John Porteous v. Sir James Nasmith
Date: 4 February 1784 Case No. No 34.
It is a pluris petitio, altho' the whole of the sums adjudged for be due, if not due to the adjudger.
April 4. 1785.
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Sir James Nasmith acquired right to three fourths of a bond granted by John Porteous; and as he was in treaty with the creditor on the remaining fourth, which he afterward acquired, he deduced an adjudication for the whole debt.
By one interlocutor, the Lords found the adjudication null in toto. But, upon advising a reclaiming petition, with answers, a distinction was adopted between a pluris petitio, when the sums adjudged for were not owing, or, which was the same thing, not vouched in a legal manner, and when the debt was truly due, but not to the person who had obtained the adjudication.
The Lords found, ‘That the adjudication led at the instance of Sir James Nasmith, was to subsist as a security for the three fourths of the debt, and penalties effeiring, which were in Sir James Nasmith's person when the diligence was led.’
Lord Ordinary, Westhall.Partibus ut supra.
Fol. Dic. v. 3. p. 6. Fac. Col. No 142. p. 223.*** This case was appealed. The following was the judgement of the House of Lords:
‘Ordered and Adjudged, That the appeal be dismissed, and the interlocutors complained of, be affirmed.’
