Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
The Apparent Heir of John Porteous of Glenkirk, v. Sir James Nasmith
Date: 4 February 1784 Case No. No 43.
An adjudication, led for bygone rents, without a previous decree of constitution, set aside, both as to these rents, and as to the whole other sums adjudged for, which had been accumulated into one sum, without distinction.
4th April, 1785.
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John Porteous, of Glenkirk, possessed lands, belonging to the Earl of Selkirk, for seven years, under a tack; and he continued in possession two years longer, by tacit relocation.
The Earl, being, at the same time, creditor, by bond, to John Porteous, deduced an adjudication of his lands; in which the nine years tack-duties, and the sum contained in the bond, were accumulated together in the same decerniture.
Sir James Nasmith acquired right to this adjudication; against whom it was objected, that no decreet of constitution had been obtained, in order to ascertain the tack-duties due to the adjudger. Erskine, book 2. tit. 12. § 4.
The Lords were clearly of opinion, That, to the extent of the rents due by the contract of lease, the debt was liquidated, with sufficient precision, by the lease itself; and that it was competent to the landlord to adjudge for such, without the formality of a decreet of constitution, in the same manner as it was to a creditor, by bond, to adjudge for bygone annualrents.
With regard to the tack-duties of those years, however, during which the debtor had possessed by tacit relocation, their opinion was different; because the adjudication was, in this respect, altogether unwarranted by any voucher, and therefore equally exceptionable as if no debt had been due. The effect of this informality, it was farther observed, was a total nullity in the adjudication, and not merely a restriction as to the tack-duties of the two years; which last would have taken place, if the different sums, instead of being accumulated, had been separately decerned for.
The Lords pronounced the following interlocutor; to which they adhered, upon advising a reclaiming petition and answers:
“In respect the decreet of adjudication was led for bygone rents, without any previous decreet of constitution, and that the whole debts adjudged for are accumulated into one sum, without distinction; find, That the same is to be set aside in totum.”
Lord Ordinary, WesthallFor the apparent Heir, Rolland, D. Williamson.Alt. Hay, Honyman, Mark Pringle.Clerk, Home.
Fol. Dic. v. 3. p. 6. Fac. Col. No 141. p. 222.*** This case was appealed. The following was the judgment of the House of Lords:
“Ordered and Adjudged, That the appeal be dismissed; and the interlocutors, complained of, be affirmed.”
For Sir James Nasmith, appellant, A. Wight Win. Adom.For the apparent Heir, respondent, Ilay. Campbell, Ar. M'Donald.
