Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Binning of Wallyford
v.
M'leod

Date: 4 December 1749

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[Kilk. No. 1, Litigious.]

In the year 1694 a second adjudication was led, within year and day of the first completed by infeftment. In the year 1696, a process of maills and duties upon this second adjudication was commenced, and kept alive till the year 1699, when, upon an objection by the debtor to the grounds of debt, it was allowed to drop. Thereafter, in the year 1706, an heritable bond was granted by the debtor, whereupon infeftment was taken. In a competition betwixt this voluntary right and the second adjudication, the Lords unanimously preferred the voluntary right, and found that the adjudger here was in mora, and so could not compete with the heritable bond, though within year and day of an adjudication completed by infeftment, which the Lords found only gave him a preference among adjudgers, not in competition with voluntary rights; though the Lord President declared he wished the practice had been otherwise, and that a second adjudger could be considered in every respect as if his debt were contained in the first adjudication. As for the doctrine of mora in this case, see Dict. tit. Litigious, by which it would appear that this point is not quite settled yet. The Lord President objected, that unless the two adjudications were considered as led for the same debt, the ranking of these three creditors would be inextricable; for the first adjudger would be preferred to the annualrenter, he again to the second adjudger, and yet this second adjudger would come in pari passu with the first, and so be preferred to the annualrenter ; which makes an inextricable circle. But the solution of this difficulty, as the practice now is established in rankings, is as follows :—Suppose, as Lord Stair does, that the subject is six, and each of the debts four ; the first adjudger is ranked first, and takes four ; then the annualrenter, to whom there remains two ; but, says the second adjudger to the first, as it is not reasonable you should lose by this annualrent that is preferable to me, so neither ought you to profit by it; if it had not existed you would have drawn but three,—therefore let me have the one that you have above that number; so you neither profit nor lose by the annualrenter, nor he by me, because he draws as much as he would have done if I had been out of the case. By this way of reasoning the division is into three, two, and one. This the Lords not understanding, did once, in a similar case, bring all the three creditors in pari passu. Vide M'Kenzie's Observations on Act 1661.