Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION contra hæreditatem jacentem.

Corser
v.
Durie

Date: 19 December 1638
Case No. No 4.

An adjudication upon a renunciation carries all by-gones, arising after the common debtor's death, altho' moveable; this ex necessitate, there being no other method of affecting such a subject.

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In an adjudication, umquhile William Durie of Newtown, being debtor by his bond, to one Corser in Dysart, of a sum of money; which, being desired to be registrate against Durie, his son, and his tutors and curators, as lawfully charged to enter heir to his father; who, renouncing to be heir; upon this renunciation, Corser the creditor, intented action, against this son of his debtor, of adjudication, for adjudging of the right of the lands of Newtown, which pertained to his umquhile father; and whereof he was in possession at the time of his decease; to this pursuer; and consequently, that this defender should be decerned to pay to the pursuer, the mails and duties of the lands intromitted with by him, and his tutors and curators, of all years since the decease of his father, so far as would satisfy this pursuer's debt. And the defender alleging, that this form of summons and process, ought not to be sustained, being far against the practice used in the like cases: For first, the pursuer ought to pursue to hear his debtor's right adjudged; which, being once adjudged, then he might competently, upon that right so adjudged, pursue for the mails and duties thereof; but to pursue for the same, before he had the right established in his person, and before it were tried if that right were of that nature, which might produce an action for the duties of these lands; and that sentences were given first thereon; it never has been heard; for adjudication is a process for executing of a sentence, and resembles in this point a comprising; and the intenting of a process of comprising, or denouncing to comprise, before the comprising were expede, and totally compleat, could, never be a ground to pursue for mails and duties; no more in a process of adjudication, can the mails be acclaimed before the sentence of adjudication were first given. The Lords repelled the allegance; and found this process might be sustained, both to crave the right of the lands, to be adjudged in one summons, and the profits decerned also; the first being found to crave the bygone mails uplifted, even as in a non-entry, the lands being decerned, or craved to be decerned, to be found in non-entry; the donator in the same summons may crave the profits to be liquidate, and decerned; and, as in a declarator of escheat, the general declarator may be sought for declaring the rebellion; so also the special declarator for the particular profits of the lands, in one and the same summons. See July 21. 1736. betwixt these parties*.

In this process, the pursuer's procurators having past from any craving of a particular adjudication, either of lands, teinds, or any writ of the same; and only craving generally, adjudication of all right which was competent to the defunct, in the defunct's person, to any lands, teinds, goods, or gear whatsoever, generally. This general adjudication was sustained, although craving nothing specially to be adjudged.

Act. Advocatus. Alt. Nicolson, Gilmore and Dunlop. Clerk, Scot. Fol. Dic. v. 1. p. 3. Durie, p. 867.

* The former dispute here referred to, between the same parties, Durie p. 820.; regarded a mere matter of fact: Whether the defender had intromitted with rents, in right of his father, so as to subject himself as heir; or in right of another person; his father having no title to the property ?