Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Chalmers
v.
Cunningham

1737, Nov. 8.
Case No. No. 14.

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In this process, a very general question, and of great importance occurred. The case was, that there was an, adjudication and infeftment upon it, and then there were many adjudications within year and day, whereon no infeftment followed, and then an infeftment of annualrent, and thereafter some more adjudications, which I think were also within year and day of this first. The question was, How the annualrent was to be preferred in competition with both prior and posterior adjudications, whereon there was no infeftment? The Lords found, that Nethergremont's infeftment of annualrent is preferable to all adjudications, whether prior or posterior, on which no infeftment followed, notwithstanding that they were within year and day of the first effectual adjudications on which infeftment followed prior to the said annualrent, and therefore adhered to the Ordinary's interlocutor, finding that Nethergremont's debt ought to be stated in computo.

The Lords first found, that if Sir David Cunningham got any eases in purchasing the adjudications against Drumgrange he was bound to communicate the same in so far as concerned the adjudication upon Gadgirth to Captain Chalmers, without distinguishing whether Sir, David purchased these adjudications within the legal or nut: and it carried by a great majority, though I own against my opinion; because Sir David, in purchasing these adjudications, became creditor to Drumgrange in the whole debt purchased, whereof he was not bound to give Drumgrange the benefit of the ease; and if he was creditor to Drumgrange in the whole sum, then the adjudication against Gadgirth was conveyed to him only in security of that debt, since an adjudication within the legal is only a security, and therefore he could not be said to have got any ease of the adjudication on Gadgirth.—21st June 1738.

The Lord, found, that Captain Chalmers had the benefit of the eases even of Drum-grange's adjudication at least of the adjudication of his own estate, carried by them; and extended the rule of a modification, which they had laid down in other cases where the eases did not appear, to this case also. Me et quibusdam aliis renitentibus.—27th June 1738.