Chalmers of Bonnington, and Cunningham, his Assignee, v. Mr John Shaw
Date: 18 July 1699 Case No. No 56.
Adjudication cannot pass even periculo petentis for a sum of which the term of payment was not come.
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Chalmers of Bonnington, and Cunningham, his assignee, craving an adjudication against Mr John Shaw, it was objected by Andrew M'Adam, and other creditors-adjudgers, That as to a moiety of his sum, he could not adjudge, because the term of payment of it was not yet come. Answered, The hail other creditors had adjudged, and if he waited till the term of payment, he would be without year and day, and so plainly lose that part of his debt, which was such a hardship as it was impossible our law could be so defective as not to have a remedy for it. Replied, That adjudication was processus executivus against the land, and by what rule could execution pass before the term of payment? Duplied, The exception of its not being yet due is only competent to the debtor, and not to his creditors. 2do, The Lords have allowed relicts to adjudge not only for bygones of their annuities, but also for terms to come. 3tio, Adjudications on bonds of relief, though before distress, was allowed betwixt Robert Burnet and Veitch of Dawick, No 53. p. 2121. 4to, Arrestments on bonds before the term of payment is very usual. 5to, Removing before the term, to take effect at the term, is sustained. 6to, Wives can pursue their husbands even while alive, si vergens ad inopiam, though the jointure cannot be due till after the husband's death. Some thought this could not be helped by the Lords, but needed a correctory law. However, the plurality agreed, that his adjudication should go out for the whole, though the term of payment was not come, but with this quality, that the co-adjudgers might object the nullity and anticipation as accords, and he might defend it on the principles and parallels of law; but this tacit allowance seemed to import the Lords’ inclination to supply the defect, and sustain it, though they did not directly decide it.
On a bill given in by the other creditors, the Lords retracted, and found they would not, even periculo petentis, allow the adjudication to go for that part of the debt, whereof the term of payment was not yet come, but only for what was already elapsed.
Fol. Dic. v. 1. p. 540. Fountainhall, v. 2. p. 61.
