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Jean Edmonston, having right to an adjudication of certain lands, craved to be ranked pari passu with the first effectual adjudication, in the person of Elisabeth Thomson, being within year and day thereof.
It was objected, That the abbreviate of Jean Edmonston's adjudication is not recorded; and Elisabeth Thomson's adjudication, duly recorded, is preferable by act 31st Parliamepn 1661.
Answered, The act 62d Parliament 1661, brings in pari passu all apprisings within year and day of the first effectual apprising, without any mention of allowances; therefore the act 31st, concerning allowances, cannot relate to such as are within year and day of the first effectual apprising; for, at that rate, the apprising first allowed should be preferred, even to those within year and day, contrary to the provision in the 62d act. So that, to take these acts in consistency, the last relates to adjudications within year and day, the first to all others.
Replied, The act bringing in apprisers pari passu, does not indeed specify, that the apprisings must be recorded; neither does it specify any other formality: But, certainly, when apprisers within year and day, are brought in pari passu, the act can be understood of such only as have all the solemnities and for malities required by law: And in this way, the acts are perfectly consistent. That this was the meaning of the Legislature, will appear, because otherwise the record of the abbreviates would be of no use; for if apprisings need not be recorded, to give them the benefit of the act 62, an apprising led thirty or forty years before the first effectual one, must come in pari passu with it: A purchaser then can have no security, by looking to the record of abbreviates; he must turn over the whole records of the Court of Session for forty or fifty years, together with the register of interruptions; for otherwise he can know nothing of many adjudications, which will come in pari passu with the first effectual one, though he sees nothing about them in the record of abbreviates. To what purpose then would that record signify?
“The Lords found, That the adjudication, whereof the abbreviate is not duty recorded, in terms of the act 31st Parliament 1661, though led within year and day of the other adjudication, whereof the abbreviate is duly recorded, cannot be brought in pari passu with it.”
Fol. Dic. v. 2. p. 332. Rem. Dec. v. 1. No 88. p. 177.
