Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Rattray of Runnaguillien v. Hunter
Date: 6 December 1694
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In a petition given in by Rattray of Runnaguillien, against Hunter, it occurred to the Lords what was the remedy where one creditor had paratam executionem, and so immediately adjudged;—another was put to constitute his debt, and to prove sundry points, which, ere they came in by the course of the roll to be advised, the year and day was expired; and so he lost the benefit of pari passu. If it occurred by the debtor's colluding with one creditor and opposing another, there must be reason to bring them in; but if it arose from the nature of the right it had the more difficulty. Some thought they might adjudge on their peril, though the debt was not constituted; but this was denied to Sir Alexander Forbes of Tolquhon against Irvine of Drum's Estate. Others thought the Lords, in such an extraordinary case, might summarily advise the probation without abiding the course of the roll; especially if done in an afternoon, whereby the roll would not be prejudged. A third thought a protestation, taken that they were not in mora, but prosecuting their right, should salve the inconveniency, and bring them in pari passu: but this was to give too great power to an instrument.
The Lords came to no conclusion in this case, because he had delayed too long; but thought it deserved regulation by an act of sederunt.
