Scottish Court of Session Decisions

Subject_1 ADJUDICATION.

Murray
v.
Creditors of Burnet

1753, Nov. 16.
Case No. No. 46.

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Mr Murray recovered adjudication against Burnet's lands for payment of a large sum of money, and after him, but within year and day, his other creditors also adjudged; and in the ranking Mr Murray insisted to be preferred to the whole other creditors, though within year and day of him, upon the act 6to Annæ, establishing the Court of Exchequer, and the act 33d Henry VIII. of England. And the Lord Advocate, in his information, maintained, that it was competent for him to have adjudged in the Court of Exchequer, and the Crown was entitled to the like preference on lands as upon goods and chattels by a writ of extent. The creditors, on the other hand insisted, that by the act 6to Annæ, land-estates cannot be affected in any other manner or form than was agreeable to the laws of Scotland before the Union. That adjudications and abbreviates were quite unknown in the form of the Exchequer Court, and no other adjudication could be available in Scotland than what were founded on our act 1672, and adjudication cognitionis causa; and that by the same act 6to Anna, the preference could only be determined in the Court of Session, and agreeable to the laws of Scotland. We all gave our opinions separatim on this important question, and unanimously found that Murray could only be preferred pari passu, and agreed that a contrary law would make a terrible convulsion in our land rights. If a suit was once commenced for the Crown, an adjudication following at 20 years distance might be preferred to adjudications completed many years before. Karnes put a pretty singular construction on the act 6to Annæ, that though it gave a privilege to the Crown's causes in the Court of Exchequer, such as they had in the Court of Session with respect to being called, yet that in competition with other creditors it gave them no preference, not even on goods and chattels. But what surprised me most was, that Lord Kilkerran told me, after that decision, that he asked Mr Craigie, who was at the Bar, but not in the cause, if he had any doubt? (both of them having been King's Advocates,) and that he said he always doubted, whether the King's debts had not a preference on lands, even by the law of Scotland. Vide 18th July 1754, when this interlocutor was adhered to. (See Note of No. 1. voce King.)