Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ADJUDICATION - MULTIPLEPOINDING.
Subject_3 Process of Adjudication cannot be stopped or delayed by a Multiplepoinding raised by the debtor, who was doubly distressed for the debt adjudged for.

John Thaine
v.
Sir William Moncrieffe

Date: 24 July 1770

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[Faculty Collection, V. p. 99; Dictionary, App. I. Adjudication, No. 4.]

Pitfour. This is a first adjudication: no damages can arise from delay,— How can the debtor have a penalty inflicted against him, while there is a multiplepoinding depending?

Coalston. The debtor is doubly distressed: it is in dubio whether Thaine is preferable or not. The debtor is not in mora, and therefore why adjudge? The practice of the Court reserves objection contra executionem; but that will not apply to a first adjudication.

President. The mora is on the part of the debtor; for the creditor has done nothing to hinder his payment. Why should he be stopped from taking legal execution in order to secure payment.

Pitfour. The distress arises from the pursuer; for he does not clear up his own preference.

Gardenston. If he who seeks adjudication is not a true creditor, he will have his labour for his pains; if he is, he will make his diligence good.

Justice-Clerk. It is not difficult to rear up objections, and to bring a multiplepoinding. This will not stop the course of the law. If, in discussing the multiplepoinding, it be found that the creditor has adjudged for too much, he himself will be the loser.

Auchinleck. The bond is dated in 1765. It is hard to keep so much money dead. The interlocutor is right.

Kaimes. A suspension only stops personal diligence, not real. This may answer the decision 1707, Tod. How can a man have his estate adjudged, when he is willing to pay, but is prevented by multiplepoinding? Answer,— Let him consign. But, in this case, consignation is not offered.

On the 24th July 1770, “The Lords adjudged, reserving exceptions contra executionem;” adhering to Lord Hailes's interlocutor.

Act. J. Douglas. Alt. W. Nairne, A. Rolland.

Non liquet, Pitfour, Monboddo.