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Scottish Court of Session Decisions >>
The Duke of Queensberry, &c. v The Creditors of Menzies of Enoch. [1694] 4 Brn 149 (9 February 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040149-0339.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Duke of Queensberry, &c v. The Creditors of Menzies of Enoch
Date: 9 February 1694
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Arniston reported the competition between the Duke of Queensberry, and Lieutenant-colonel Douglas, and the other Creditors of Menzies of Enoch, who quarrelled the adjudication which the Duke had acquired from Williamson of Hutchingfield, as null, because he had adjudged for some years' annualrents paid to his father, and also for some years paid to himself. The Lords thought the annualrents paid to his father could import no nullity, but only to restrict: but it was considered to be of pernicious consequence to sustain diligence led for more than was due, when a great part was paid to the adjudger himself; for there was a tract of decisions finding apprisings and other diligences null on that head. See 23d November 1677, Boyd; 20th July 1678, Morris; and 31st January 1679, Irvine. And, in the common law, pluris petitio was reputed so calumnious a fraud that causa cadebant. So that the Lords would have annulled this adjudication here, had they not fixed on a slender homologation, that the other adjudgers had acknowledged his right, by taking a proportion of the expenses in expeding their infeftment on the adjudication: and, on this reason, they only restricted it to the principal sum and annualrents.
