Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Lord Archibald Hamilton, and Sir James Oswald, v. Sir Charles Murray of Hadden
Date: 21 June 1700 Case No. No 10.
An offer to instruct instanter, that the debtor was denuded, and that the party so offering was himself proprietor; refused to be received summarly, as an exception. The adjudication passed, reserving all defenees contra executionem.
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Lord Archibald, as creditor of Hadden, raises an adjudication of his lands for L. 300 Sterling. At calling, Sir Gilbert Elliot of Stobs compears, and alleges, there can be no adjudication, because Hadden was denuded of these lands in my favours, by an irredeemable disposition, whereon I am publicly infeft under the great seal; so you cannot adjudge my lands for Hadden's debt.—Answered, I will not debate your right hoc loco, though it be but recent within these two or three years, and from a father-in-law to his goodson, and so liable to much suspicion; my summary process of adjudication cannot be stopped hoc ordine, but I must be allowed to go on, reserving your defences and right contra executionem, when I come to seek possession, or pursue for mails and duties; and that the Lords decided so 23d November 1664, Livingston contra Lord Forrester and Creditors of Grange, (No 6. h. t.), where the Lords adjudged, though it was instructed by a back-bond, that the debtor's right was only a trust; only, they qualified it to be burdened with the back-bond. Yea, on the 15th November 1666, Cheyne contra Christie, (No 7. h. t.), they adjudged simply. —Replied, If I were delaying, then it were unreasonable to stop the adjudication; but I offer instanter to produce, all my papers in the reduction, and to instruct my undoubted right to the lands, and debate preference; and whether my right be recent or old, non refert, seeing I can instruct its onerous cause, though inter conjunctos, et frustra sit per plura, and only accumulates expences, and forces all Hadden's other creditors to adjudge: And you have no prejudice, seeing there is none before on this subject. The Lords considered it was hard to put creditors to debate in initio their authors or debtors right, which might be abstracted or concealed; and therefore they may adjudge at their peril, whatever they suppose belong to their debtor; and afterwards, if you have a right exclusive of mine, if I by incident diligences cannot recover What may elide it, then you'll be preferred. Others thought it extravagant to let him adjudge other men's lands, under the pretence of being his debtors; though it is an usual practice, where lands have been sold off many years ago by my predecessor; yet I the apparent heir will grant a bond, whereon adjudication may follow against me, and thereon I may call for reduction of these ancient rights; only, in Inverebry and Forbes of Tulloch's case, against Ballogie and others, 7th February 1699, (No 9. h. t.) the Lords found he behoved to adduce some adminicles of his Contingency in blood, and of his predecessors being heritors of that land, being in re antiqua.——The Lords here refused to take in the reduction summarly, especially Stobs being minor, and therefore adjudged, reserving all Stobs's defences contra executionem.
Reporter, Mersington.
Fol. Dic. v. 1. p. 12. Fount. v. 2. p. 98.
