A decree of adjudication in relief was allowed to be extracted before distress, but under the quality, that it should not take effect till distress.
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Robert Burnet, writer to the signet, seeking an adjudication against Veitch of Dawick's lands, and the clerk scrupling, he moved it to the Lords, that the ground of it was a bond of relief, and as yet there was no distress. The Lords allowed the extract of the decreet of adjudication to go out, with this quality, that it should not take effect till distress. This was opposed by Pitmedden and others, as informal, seeing in effect it was no debt till there was distress or payment, and is but a conditional obligation, et dies incertus, which cannot be the ground of any diligence; yet he might lose his relief, being prevented by others, unless he came in pari passu with them on his bond, or else cause the creditors, to whom he is bound, adjudge; which they may refuse, as being sufficiently secured.
Fol. Dic. v. 1. p. 126. Fountainhall, v. 1. p. 376.
*** See This case by President Falconer, No 12. p. 140.
