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Scottish Court of Session Decisions >>
Wallace of Cairnhill v Barclay. [1736] Mor 8388 (8 December 1736)
URL: http://www.bailii.org/scot/cases/ScotCS/1736/Mor2008388-085.html Cite as:
[1736] Mor 8388
Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. III.
Mora.
Wallace of Cairnhill v. Barclay
Date: 8 December 1736 Case No. No 85.
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An adjudication was deduced December 1726, with a charge against the superior February thereafter. In May 1730, the debtor granted an heritable bond, upon which infeftment followed in October thereafter. In a competition betwixt the adjudger and annualrenter, about the mails and duties arising anno 1735, the infeftment of annualrent being the first real right, was challenged as granted in cursu of the adjudger's diligence. Answered, The adjudger was in mora by not taking infeftment. Replied, 1mo, An adjudication with a charge is an effectual diligence, after which there can be no mora. See Stair, Tit. Dispositions, § 20. in fine, and § 23. 2do, An adjudger is not bound to take infeftment during the legal, Stair, Tit. Infeftments of Property, § 30., and therefore during the legal, he cannot be in mora, though he neither take infeftment, nor charge the superior to give him infeftment. The Lords preferred the adjudger.
