Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Tod v. Scot
Date: 16 December 1707 Case No. No 4.
An adjudication allowed to proceed, reserving all defences, although the ground of it was under suspension.
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Grissel Scot being relict of Muirhead of Stevenson, and having had great intromissions with his sheep and other stocking, there is a submission entered into betwixt her step-son young Stevenson, and her, and by a decreet-arbitral, she is decerned to pay him 3000 merks. John Tod merchant in Glasgow, being creditor to the Laird of Stevenson, he arrests and obtains a decreet of forthcoming, and thereon raises a summons of adjudication; her defence is, I have raised a reduction of that decreet of forthcoming, because the debt arrested being only conditional, can never be the foundation of an executive process, till all be implemented and fulfilled to me. 2do, I have suspended the decreet-arbitral on clear nullities, and the suspension is not yet discussed. Answered, Adjudications are most favourable diligences, left creditors be cast without year and day; and esto this be the first, yet she is old and valetudinary, et vergens ad inopiam, and if she die, he loses his debt; and all that was prestable on Muirhead of Stevenson's part is fully performed; and, though a suspension stops personal execution, yet it cannot be obtruded against a real diligence for my further security; and if you prevail in reducing or restricting the decreet-arbitral, the adjudication will fall, or be restricted, in consequence.
The Lords would not stop the adjudication, being processus et judicium summarium, but reserved all defences contra executionem to the mails and duties there to be received.
