Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Seton
v.
Glass

Date: 3 January 1750

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The lands of Sauchie were purchased from John Glass by Captain Cheap, prior to which, George Seton had inhibited the seller, and also executed a summons of adjudication, in which thereafter the Ordinary decerned ; but having omitted to registrate the abbreviate within sixty days, he enrolled his cause of new, and the Ordinary again decerned.

Whereupon Captain Cheap presented a petition, complaining, 1st, In general of the adjudication as invidious, in respect the pursuer had no more to do but appear in a multiplepoinding, which the purchaser had raised, in which the pursuer and the other creditors were called, and therein, as his debt was preferable, he might for the asking obtain preference, and thereon payment. 2do, That the inhibition was only a ground of reduction of the purchaser's right, to which, were it pursued, the answer would be good, No prejudice, because the price is in medio for the taking. 3tio, That the same answer would serve, were there a reduction pursued, on account of the subject's having been made litigious by the preceding summons of adjudication.

And more particularly, 2do, That the decree of adjudication, now pronounced, was not valid, the Ordinary having been functus by the first decree now deserted.

The Lords “refused to stay the adjudication, unless the petitioner would pay the pursuer his debt;” for there was nothing in the objection, that the Ordinary was functus, which never is the case till decree be extracted ; and this very thing is what is done every day.

Kilkerran, p. 18.