Sir James Dick, and other Creditors of Bailie Marjoribanks, v. Alexander Chapeland
Date: 18 January 1681 Case No. No. 41.
When the letters are found orderly proceeded, the decree of suspension must be extracted before the first decree can be put in execution.
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Alexander Chapeland having obtained a decreet against umquhile Bailie Marjoribanks, he gave in a bill of suspension, and the Lords ordained the cause to be discussed upon the bill; whereupon the Ordinary having heard the cause, found the letters orderly proceeded; but before extracting, Chapeland denounced Marjoribanks, being then a dying, and now dead. His creditors supplicated the Lords, showing that Chapeland had unwarrantably put the letters of the first decreet to execution, and denounced the common debtor, whereby his escheat would fall; and therefore he ought to bring back the horning, and cancel it, as unwarrantable; because after suspensions is past, execution of the first decreet is thereby suspended till by an extracted decreet of suspension the letters be found orderly proceeded, and be ordained to be put to further execution; after which the charger may either put the letters upon the first decreet to further execution, or take new letters upon the decreet of suspension; but before extracting, the suspender is still in tuto, and may apply to the Lords. It was answered, That after pronouncing of the decreet, albeit not extracted, the charger might warrantably poind or denounce upon the first letters, especially seeing the decreet was warrantably extracted, without any stop, or application for one. 2do, By the denunciation, right is acquired to the King of the defunct's escheat, which cannot be taken away summarily, without calling the King's officers. 3tio, Whatever may be pretended in a suspension past the signet, yet this was but a bill with a deliverance to discuss thereon. It was replied, That the Lords have declared, that warrants to discuss upon bills of suspensions, are in all points equivalent to bills past the signet.
The Lords found that the warrant to discuss the bill was equivalent to a signet suspension, and that the letters upon the first decreet could not be put to execution till a decreet of suspension were extracted, and therefore granted suspension to the creditors without caution or consignation, but would not call back the horning till the King's officers were called.
