Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Balfour and Stewart v. George Robertson
Date: 1 January 1695
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Presmennan reported Balfour and Stewart against George Robertson. One is pursuing the apparent heir for constituting his debt cognitionis causa, in order to an adjudication; but the term of payment of the debt is not yet come. A co-creditor, who has already adjudged, competes, and contends that he cannot pursue nor adjudge before the term of payment. Answered,—He only craves it declaratorio juris, lest he be cast without the year and day, or even without the ten years of the legal, if the liferentrix live so long, whose death is the term of payment: and in arrestments it has been permitted, though the term of payment be not come,—29th July 1670, Charters against Neilson; and 17th July 1678, Pitmedden against Paterson: and in John Hall's case against Sir William Sharp, the Lords sustained his process-declarator even before eviction and distress.
The Lords thought it hard, where the debtor's apparent heir renounced, to suffer a creditor to debar another, though his term of payment was not come, to perfect his diligence on his own peril, adjudications being summary processes; reserving this defence to any competition that may arise in the maills and duties.
