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Robert Hamilton of Boutreehill, v. Alexander Blackwood, Merchant in Edinburgh
Date: 17 July 1761 Case No. No 22.
Second diet of compearance in a second process of adjudication dispensed with, in order to bring it within year and day of the first adjudication.
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Alexander Blackwood was creditor to Cathcart and Blackwood, merchants in London, who became bankrupt in 1745, and obtained a certificate of bankruptcy. It was afterwards discovered that there was an heritable subject in Scotland belonging to Cathcart, which had not been surrendered to the commission under the bankruptcy. Alexander Blackwood obtained decreet of adjudication of this subject on the 26th of June 1760.
Robert Hamilton of Boutreehill, another creditor, executed a summons of adjudication upon the 4th of April 1761, and as Cathcart's residence was at London, the diets of compearance could be no sooner than the 12th and 28th of June thereafter, the last of which diets fell without year and day of Blackwood's adjudication.
Hamilton applied by petition to the Court, after the elapse of the first diet of compearance, praying that the second diet might be dispensed with, and that warrant might be granted for inrolling, calling, and decerning in the adjudication. The Lords, upon the 19th June 1761, granted warrant in terms of the prayer of the petition, “authorising the clerks to call, and the keeper of the rolls to inroll the above adjudication in the nest week's regulation-roll for the outer-house, notwithstanding the second diet of compearance was not come; and authorising the Lord Ordinary to pronounce decreet of adjudication therein.” And the Lord Ordinary, upon the 24th of that month, pronounced the common interlocutor of adjudication, reserving all objections contra executionem.
Pleaded in a reclaiming bill for Blackwood; By the laws of all civilized nations, sentence is not suffered to pass against any man's person or estate till an opportunity is given him of being heard in his defence. In Scotland, our ancestors were particularly careful that full time and repeated notice should be given to the defender to bring him into court before any judicial proceeding could go on against him. By act 30. par. 1449. no less than three summonses, each of them upon fifteen days, were appointed to be given to parties, even within the kingdom.
After the institution of the College of Justice, first and second summonses were for a long time in use; these different summonses taken out and executed one after another, were found troublesome, and new regulations were from time to time made, but still two distinct diets of compearance were preserved; and, as some abuses had crept in as to shortening these diets, it was provided by act of sederunt, 29th June 1672, That all summonses should be given upon 21 days warning for the first diet, and six days warning, for the second, excepting alimentary causes and certain others therein mentioned, which are specially privileged to pass upon shorter induciæ but among these, summonses of adjudication are not mentioned, nor have they ever been considered in practice as privileged, either as to the number of diets or days of compearance; and therefore they have always been expeded with two diets, and upon the common induciæ.
With regard to persons out of the kingdom, the immemorial practice has been to cite them at the market cross of Edinburgh, and pier and shore of Leith, upon 60 days for the first, and 15 for the second diet of compearance; nor has any exception been made with regard to adjudications. An adjudication is a process that deserves attention as much as any process whatever; it is an extraordinary remedy by which the estate of the defender is conveyed in satisfaction of the pursuer's debt; the law, therefore, has given an alternative to the defender, that if he thinks fit, he may produce a progress, and prevent more of the estate from being affected than answers the extent of the debt; and it would be very hard to deprive him of an opportunity taking the benefit of this alternative, by assigning him fewer diets, or giving him shorter induciæ than usual for his compearance.
Summonses are issued from the King's signet, authorising messengers at arms to cite defenders to compear at the diets therein mentioned. It is submitted, if a summons, once issued and executed agreeable to law and practice, can be altered in an essential point in favour of the pursuer, and in prejudice of the defender. Here the days of compearance are filled up in the summons, “the 12th and 28th of June;” and the execution bears, that the defender was cited to the days 'therein mentioned.' This implies a sort of contract between the parties, that the defender shall appear at the days to which he is cited, and that the certification in the summons shall not take place till he be heard, or these days elapsed. Besides, till the days to which a defender is cited are past, there is no action or process depending in court, upon which any order can be given, or decreet pronounced. The case is quite different where the days are run, for the defender is then held to be in court; and there is a depending action which the court may justly forward in its issue, by dispensing with mere forms, such as the outgiving of a summons, which has sometimes been done in the case of second adjudications, after the elapse of the days of compearance, to bring in creditors pari passu on the act 1661; but no argument can from thence be drawn to the present case.
Answered for Robert Hamilton; Before the statute 1672, first and second summonses were necessary; and after the first was executed, and the diet of compearance therein elapsed, an act of continuation was granted, upon which a second summons was raised and executed before the pursuer could proceed in his cause; but as these acts of continuation and second summonses were expensive, and occasioned delays, it was provided by act 1672, that there should be only one summons, containing two several warrants for citing the defender at different times; and thereafter, for the greater ease of the lieges, a further remedy was provided by act 12th, Parl. 1683, whereby one citation was declared sufficient for both first and second diets of compearance. But though, by our ancient practice, two citations were necessary, yet the defender was understood to be in court upon the first citation, and the second was not in all cases necessary; this is clearly laid down by Lord Stair, b. 4. tit. 38. § 30. and Sir Thomas Hope, in his Minor Practics, tit. 1. § 4. who both make this distinction, that where the libel required to be proved by witnesses or oath, an act of continuation was necessary; but where the pursuer could instantly instruct his libel by writ, the first citation was sufficient. It does not appear that the statutes 1672 and 1693 made any alteration in this respect, but only provided, that, in the cases where two summonses were formerly necessary, two citations should now be given, or the defender should be cited to two diets; and therefore it is thought, that where the summons can be instantly instructed by writ, it is not at this day necessary that it should contain two different diets. A process of adjudication is properly of this last kind; the grounds of it must be clear and liquid; the debt must be previously constituted and instructed by writ; and therefore two diets in a summons of adjudication would in no case be necessary, were it not on account of the alternative introduced by the act 1672 in favour of the debtor, by which he can avoid a total adjudication of his lands by giving off a part effeiring to the debt, which can only be done by a proof of the value of the lands. This circumstance seems to render two diets necessary in a summons of adjudication; but then it will be observed, that this can only hold with respect to the first adjudication, where the defender is entitled to take a day to produce a progress, purge incumbrances, and to give off lands effeiring to the debt, which requires a proof of the value. It cannot apply to the case of a second adjudication; for, after one decreet of adjudication is obtained against the debtor, he has it not in his power to lay hold of the alternative given by the statute; he cannot pretend to give off lands effeiring to the debt; he must allow decreet of adjudication to go against his whole lands; nay, he cannot propone any defence whatever against the second action; he cannot even object to the debt for which the adjudication is led. And thus, in practice, when a second summons of adjudication is called by the clerks in the outer-house, the defender is not allowed the common privilege of having a lawyer marked for him; it must pass in absence; the pursuer is entitled to have his decreet, that he may come in pari passu with the first adjudger; and all objections are reserved contra executionem.
A second summons of adjudication is therefore precisely in the case of those actions where the pursuer instantly instructs his libel by writ, and where no act of litiscontestation is necessary; and consequently there appears no necessity for a second diet of compearance. It is indeed necessary that the defender be brought into Court, because no action can proceed without a defender; but, as in former times, he was truly in court after the diet of compearance upon the first summons, and for the same reason is now in court after the elapse of the first diet of compearance; so it must appear idle to use either a second citation or a second diet against a defender, who, though in court, can make no defence. The relief, therefore, which the court has given in this case is, in reality, no more than dispensing with a step of procedure which was altogether unnecessary; and there is the clearest ground in equity for giving this relief, as the intention of it is to bring in creditors pari passu, who have an equal title to attach their debtor's estate. Accordingly it has always been the practice of the court in such cases to dispense with the second diet upon the application of the pursuer. One instance of which occurred very lately, in the case of Newal of Barskeoch against Alexander M'Clamroch, decided 2d August 1758.* The Lords adhered.
* Not Reported.
For Hamilton, Macqueen.For Blackwood, Rae.
Fol. Dic. v. 3. p. 316. Fac. Col. No 48. p. 101.
