Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Mabens v. Ormiston
Date: 25 July 1740 Case No. No 18.
The law of the above cases, relative to personal execution altered.
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A doubt being stirred, by the writer to the signet, when he presented a bill of horning to the Ordinary on the bills, whether horning should be granted upon certain grounds of debt, whereupon adjudication had lately proceeded, and in virtue whereof the adjudger was in possession; which the Lord Ordinary stated in general to the Lords, they ordered memorials.
But no appearance having been made against passing the bill, the Ordinary, upon resuming the report, laid before the Court, the old decisions, 23d June 1627, Sinclair against Bruce, (No 13. h. t.); 29th January 1628, Meldrum against Cluny, (No 14. h. t.); 22d January 1631, Cloverhill against Moodie, (No 16. h. t.); 7th December 1631, Scarlet against Paterson and others, (No 17. h. t.) From which it appeared that an appriser, who had attained possession, could not use personal diligence, even during the legal, unless he renounced his apprising; and that if the continued to possess after the legal, he could not be allowed, even upon renouncing his apprising, to attach the debtor, or any other subject belonging to him; because then his debt was understood in law to be paid. And the question was, Why should not the case be the same in general adjudications, as it was in apprisings?
As to which it was observed, That, originally, apprisings were like poindings direct, and irredeemable conveyances; and while they remained of their original nature, there might be some reason, that while the creditor retained his apprising, he should have no access to other diligence.
But after apprisings came to be only rights in security redeemable, the decisions referred to, were said to carry the matter too far; that an apprising, though only right in security, over, perhaps, a small estate, noways sufficient for the debt, should, within the legal, bar the creditor from affecting a separate subject or even the person of his debtor, who might have concealed effects.
But that, be in this what will, there was still a different consideration in adjudications; for, in apprisings there was a valuation of the subjects as in poindings; whereas, adjudications are led at random, without any regard to the value.
And without further argument it was found, ‘That the creditors might, without renouncing their adjudication, or discontinuing their possession, use personal diligence against the debtor.’ And accordingly, the Ordinary was authorised ‘to pass the bill of horning.’
Nevertheses it must be owned, that as a decision, it is of the less authority, that it proceeded ex parte, and came in, it may be said, by surprise before the Court.
Fol. Dic. v. p. 12. Kilkerran, (Adjudication and Apprising.) No 8. p. 5.
