Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATION Upon The ACT 1672. Subject_3 *** The import of the act is as follows: - Considering how much comprisings have departed from the original design of the legislature, which never meant that great estates should be carried away for inconsiderable debts; nor that messengers, or ignorant persons, should judge in matters of so great importance: And, considering the great prejudice to trade and commerce, proceeding from the length of the legal reversion, during which, the creditor cannot command his money, and both debtor and creditor neglect the improvement of the lands; and, that even after the legal is expired, comprisings become the foundation of much fraud; the right thereof being sometimes acquired by the apparent heir of the debtor, who thereby secluded lawful creditors: And as, by the ignorance of notaries and messengers, and in consequence of many unnecessary solemnities, nullities have often happened in the diligences, and at all times they have been most expensive, by means of penalties and sheriff fees: In order to secure equally the interests of debtors and creditors, it is enacted, That in place of apprisings, the Lords of Session shall, at the instance of any creditor against his debtor, principal or cautioner, adjudge and decern to the creditor, in satisfaction of his debt, as constituted, such a portion of the debtor's estate, consisting in lands and other rights, which were in use to be apprised, as shall be worth the sum, principal and interest, then due, and a fifth part more, in compensation of the want of the use of the money, and the necessity of taking land in lieu of it; and these over and above the composition to the superior, and the expences of the infeftment. The adjudication shall be made according to the rates of the lands and other rights in the neighbourhood, and proof shall be taken by the Lords, on the part of the creditor, and likewise of the debtor, (if he shall desire it,) of the yearly rent and value of the lands and rights, and what they have yielded for five years preceding, and what they may pay, and the rates and prices at which such lands and rights are usually sold in the neighbourhood; with power to the Lords to determine what warrandice the debtor shall be liable in to the creditor, of the lands and rights so adjudged. Upon the decreet of adjudication, it shall be lawful for the creditor, immediately to enter to the possession of the lands or other rights, and so intromit with the mails and duties thereof, in satisfaction of his annualrent, during the not redemption; and he shall not be liable to any restriction, or action of count and reckoning. If the lands adjudged be affected with liferents, or any casualty, or if the right adjudged be such as to yield no rent during the legal to be now appointed, this shall be expressed in the decrees, together with that part of the sum effeiring thereto; that in case of redemption, the creditor may have his annualrent for that part of his sum, for which he had no profit; which lands, and other rights adjudged, shall belong heritably and irredeemably to the creditor, if they be not redeemed within the space of five years, after the decreet of adjudication, by payment or consignation of the sums, principal and interest, for which the adjudication proceeded, the composition paid to the superior, and expences, in obtaining infeftment, and interest thereof, in so far as not satisfied by possession, in manner mentioned. The creditor being once in peaceable possession, conform to the decreet of adjudication, it shall not be lawful for him to use any farther execution against his debtor, except in case of eviction upon the warrandice, which the Court shall order. But it shall be lawful for the creditor to use all manner of diligence against his debtor, principal or cautioner, by horning, caption, arrestment, or otherwise, until he enter to the actual possession. Comprisings are prohibited in future, without prejudice of any comprisings led before the date of the act, or to be deduced, of lands or other rights already apprised, of which the legal is not expired, which are to be regulated by the former laws. It is provided and declared, that if the debtor shall abstract the writs and evidents of the lands, and other rights to be adjudged, and shall not produce sufficient rights and deliver them, or transumpts of them, to the creditor, such as the Lords shall judge necessary; and, if he shall not renounce the possession, and ratify the decreet of adjudication, in order that the creditor may enter summarily and without impediment, so that he may have a clear right and quiet possession; then, and in that case, it shall be lawful for the creditor to adjudge all, or any right belonging to his debtor, in the same manner as he might have apprised them, according to the act of Parliament 1661, under the reversion, and with the power competent to other creditors, expressed in the said act. It is provided, that neither the superior, nor the adjudger, shall be prejudged by the new act; but that they shall be in the same case after citation in an adjudication, as if apprising were led of the lands at that time, and a charge given to the superior thereupon. Decreets of adjudication shall be allowed by the Lords of Session, as apprisings used to be; and the allowance shall be registered in the same manner, and under the same certification, with the allowance of comprisings, that it may be known; and that creditors may not be disappointed, by adjudging lands already adjudged to others.
Cha. II. Sect. 19. 6th Sep. 1672. p. 501. duodecimo.
Veitch v. Maxwell
Date: 18 November 1708 Case No. No 8.
Both alternatives of the act 1672 ought to be libelled in the summons of adjudication. - An adjudication wanting this requisite, is restricted to a security for principal sum and annual rent.
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Lord Minto reported, Veitch and Lady Maxwell. Mr William Veitch, minister at Dumfries, being creditor to Lancelot Grierson of Dalskairth; he obtains an adjudication against his son, and thereon pursues mails and duties against the tenants, and a removing. In which process, compearance is made for Lady Mary Maxwell, daughter to the Earl of Nithsdale, now Countess of Traquair, ———alledging, She ought to be preferred, as having adjudged the same lands several years before, and charged Lag, the superior. ———Answered, Though my adjudication be without year and day, yet it is the first effectual adjudication by the 62d act 1661, being infeft; and the most you can plead is to come in pari passu with me: But, 2do, Your adjudication is null; because both your summons, and the decreet following thereupon, is disconform to the 19th act 1672, which contains an alternative, that if the debtor compear, produce a progress, and renounce possession, then the creditor must be restricted to a portion of land, and a fifth part more; but if he abstracts the writs, and does not renounce, then the decreet goes for the whole: But, it a est, the Countess's summons does not repeat the alternative clauses of the said act, but only narrates the grounds of her debt, and that she cannot get payment,; and therefore, by the said act 1672, craves the debtor's whole lands to be adjudged, omitting the first clause, and only founding on the second alternative, which is penal, in case the defender do not obey and obtemper the first clause, which ought to have been libelled, as well as the second; and the decreet following on such lame and defective summons is, ipso jure, null; and Mr Veitch ought to be preferred thereto.—Replied, No law requires the libelling the whole act. This was only introduced by the writers to the signet to make long papers, to be a pretence for a long account; and, undoubtedly, this short way is the most just and rational; for it is the defender's part to found on the first alternative; and, by the way of defence, crave the benefit of restriction, which, if he omit, I was not obliged to insert the act of Parliament ad longum. Duplied, When jaw prescribes a formula for leading a diligence, it must be observed in terminis specificis; and, if done otherwise, it is null; quod, lege prohibente, fit, id nullum est; si nullum est, tunc nullos sortitur effectus; and therefore the terms of the act of Parliament were precisely to be libelled, and the omission thereof is a clear nullity.— Triplied, That in alternative obligations, the creditor may pursue simply for one of the two alternatives; but then the debtor may alledge the election is his, what part he will fulfil. If the obligement be to deliver Davis or Stichus, and I crave Davis, he may offer Stichus, and so fulfils his obligation.
The Lords did not think it absolutely necessary to engross public laws at length; but the constant practice, for the most part, since that act, was to libel the whole; and when writers, by mistake, claimed both the whole lands, and a fifth part more, the Lords, in Wilson's case, against Renton; (No 7. h. t.) and, on the 9th December 1681, Geddy contra Telfer, (No 2. h. t.) because of the mistake, restricted such adjudications only to be a security for principal sums and annual-rents, striking off the accumulations: But, to discourage the practice in time coming, they, by an act of sederunt, 26th February 1684, declared it should be a nullity if so extracted hereafter; even so here, the Lords would not find Lady Mary's adjudication null for short libelling; but, in respect of the defect, they cut off its penalties, termly sailies, and other accumulations, and sustained it only for a security, in so far as extended to the principal sum and annualrent*.
Fol. Dic. v. 1. p. 5. Fountainhall, v. 2. p. 463.
* The same case is thus stated by Forbes.—In a competition betwixt Mr William Veitch and the Countess of Traquair, who had both adjudged the lands of Dalskairth, for debts due to them by John Grierson, the heritor;
It was alledged for Mr Veitch, That the Countess's adjudication is null, for that it libels only the ground of her debt, and that she could not get payment; and therefore requires the debtor's whole lands to be adjudged, in the terms of the act of Parliament 1672; without requiring the debtor to produce a free progress to land corresponding to the debt, and a fifth part more, which is an alternative in that statute. And by act of sederunt, February 26. 1684, although pursuers ought to libel both the alternatives of the act 1672; yet they should not take a decreet for a fifth part more, unless the defender compeared, and disponed particular lands.
Answered for the Countess.—The act 1672, requires not all the clauses therein to be repeated in a summons of adjudication: But it is sufficient to mention the act, and conclude that the debtor's lands ought to be adjudged in the terms thereof, for payment of the sums due to the adjudger. Narrating the act in long terms, is but an art of writers, to make their clients pay the more; for there is no necessity to insert at length a public law, which all are obliged to know. Yea, even in the case of alternative obligations, the creditor may pursue performance of one member of the alternative, and will get decreet for the same, unless the debtor claim his privilege of election. 2do, The not libelling the act ad longum, did not hinder the debtor, against whom the adjudication was pursued, to compear and offer a progress in the terms of the act; and his neglecting to do so, was a passing from that benefit. And it is all one to the common debtor, whether both the members of the alternative were specially libelled or not; seeing he might, in either case, have had the benefit of restricting the adjudication, by satisfying the conditions required by the act; and, without that, could have had it in neither case.
The Lords repelled the nullity proponed against the Countess of Traquair's adjudication, but restricted the same, as a security for principal sum and annualrents.
