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Scottish Court of Session Decisions >>
Adjudgers of Falahill v Cuningham of Comrie. [1736] Mor 12185 (27 January 1736)
URL: http://www.bailii.org/scot/cases/ScotCS/1736/Mor2912185-330.html Cite as:
[1736] Mor 12185
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The first adjudication upon which charter and sasine had followed, and of which the rest were not within year and day, was challenged upon this ground, That the extracted decree of adjudication was disconform to the warrants. The extract bore, that the decree was simply in absence, whereas upon looking into the warrants it appeared that the decree was in foro; a production made by a third party of a right to the lands, in order to bar the adjudication; another production made by the pursuer, in order to take off the effect of the former production; interlocutors upon these productions, &c. It was answered, That though there might be some error in the form, there was none in the substance; the extract narrated the precise lands that were adjudged, and so no hurt to any mortal. Replied, The extracter's province is to give a faithful and exact account of the steps of procedure, and not to dress up processes in fancied shapes of his own; and if such liberties were allowed, extracts could bear no faith, which behoved to render them useless to the lieges. The Lords would have found the decree simply null; but the creditors having insisted in their objection ad hunc effectum only, to bring them all in pari passu, the Lords found the decree informally extracted, and sustained the objection, to restrict the adjudger to a preference pari passu with the other adjudgers. See Appendix.
