Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Merry
v.
Inglis

Date: 14 February 1740

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[See C. Home, No. 139.]

The question here was, Whether, when lands are only declared affectable by a debt, but the proprietor not found personally liable, nor the debt constituted against him, an adjudication can proceed in terms of the statute 1672,—or at all?

It was argued against the adjudication, That there could be none upon the statute 1672, because adjudications upon that statute came in place of apprisings; now there could have been no apprising upon this debt, because there was no debtor against whom it could proceed, for the same reason that there could be no apprising where the heir renounced. Neither will any of the two adjudications in use before the year 1672, viz. adjudication upon the apparent heir's renouncing, or adjudication in implement, apply to this case. So that here there can be no adjudication at all, neither upon the statute 1672, nor otherwise, till the debt be first constituted. To this it was Answered,—1mo, That a comprising was competent of old, without any regard to a personal obligation, as a comprising upon a decreet of poinding the ground for bygone annualrents, which proceeded though the proprietor was not personally liable. So that, as adjudications are come in place of apprisings, and it is said in the statute that no lands shall hereafter be apprised that were not apprised before, there is nothing hinders the lands in this case to be adjudged in terms of the Act 1672. 2do, Supposing there were any difficulty in point of law, yet this was a case of necessity ; for it was very probable that the proprietor of the lands would not be found personally liable ; the consequence of which would be, that the lands would be liable for the debt and yet affectable with no legal diligence for payment of it: that, in such cases, the Lords are in use ex officio to invent new forms of diligence to expedite the matter; thus, the two adjudications in use before the Act 1672 were introduced; and, since, there have been many instances of their Lordships using the same power, in cases exactly similar to this ; e. g. in the case of bastardy, or ultimus hæres, the king is certainly personally not liable for the debts of the last fiar, and yet there is no doubt but an adjudication would be competent against the estate. The same in the case of forfeiture, neither the king nor his donatar is personally liable for the debts of the forfeited person, and yet the Lords have frequently allowed adjudications against the lands.

The Lords found, first, That an adjudication could not proceed; but, upon advising a reclaiming bill and answers, they found that it could proceed.

N.B. Lord Elchies and Lord Arniston gave it as their opinion, in the debate, that an adjudication for bygone annualrents, upon a decreet of poinding the ground, would proceed in terms of the statute 1672 ; and that the proprietor would have the option mentioned in the Act; contrary to the opinion of Stair,—see title Poinding and title Apprising. They founded their opinion upon the words of the Act above mentioned.