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Scottish Court of Session Decisions >>
Rutherfoords v Lockhart of Cleghorn. [1716] Mor 4004 (11 July 1716)
URL: http://www.bailii.org/scot/cases/ScotCS/1716/Mor1004004-027.html Cite as:
[1716] Mor 4004
Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. II.
Who liable to Exhibit? - No interest to call for Writs where the Defunct was Denuded. - Ought to be no conclusion for Delivery, nor for Count and Reckoning.
Rutherfoords v. Lockhart of Cleghorn
Date: 11 July 1716 Case No. No 27.
A debtor, against whom an apprising is led, having ratified it by a deed under his hand, this is sufficient to bar his apparent heir from pursuing an exhibition of the apprising ad deliberandum.
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In a process of exhibition ad deliberandum, at the instance of Helen and Rachael Rutherfoords, as representing Sandilands of Boal, against Lockhart of Cleghorn, the pursuers having called for exhibition of an apprising, led at the instance of the defender's authors against Boal; and he having produced a ratification of the said apprising by Boal himself, he contended, that he had sufficiently exhibited; and that the pursuers, as apparent heirs, had no more to say; and that because,
1mo, Such a production would certainly exclude Boal himself, and therefore all who represent him; 2do, If the pursuers were served heirs, and infeft, the defender would exclude them upon this right; much more then will it exclude their exhibition ad deliberandum, where they have no established title.
Answered for the pursuers; That the ratification was only an acknowledgement, that the apprising was legally deduced, which is nothing to the present case; it not being the question, Whether it was formal or not? but, Whether it ought not to be exhibited as it stands? Besides, that, for aught yet appearing, the apprising may have been satisfied within the legal; and therefore a ratification of it does not complete the right so as to exclude the pursuers.
‘The Lords found the pursuers have no right to call for the apprising libelled, the same being ratified by the person himself against whom it was led.’
Act. Muir.Alt. Arch. Hamilton.Clerk, Sir James Justice.
Fol. Dic. v. 1. p. 284. Bruce, v. 2. No 15. p. 19.
