John Macneil of Rosebank, v. John Buchanan, Writer in Glasgow
Date: 7 February 1770 Case No. No. 2.
Formality and regularity of a decree of constitution, and of a charge to enter heir. - The pari passu preference of the statute 1661, c. 62. applies to the adjudication of an adjudication.
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Hugh Maclauchlan had adjudged the estate of Campbell of Torry for £159. 5s. and soon thereafter died in Jamaica, leaving an only daughter Margaret. Margaret was served heir in general to her father; but surviving him but a short time, the right of succession devolved upon John Maclauchlan her father's brother, who never made up any title to his niece.
John had contracted debts; and his creditors not knowing, it seems, that Margaret had been served heir to her father, served John heir in general to Hugh, without taking any notice of Margaret; and two of them, viz. Alexander Grant, writer in Edinburgh, and John Macneil, in 1765, adjudged the adjudication upon the estate of Torry.
John Buchanan was creditor to Hugh Maclauchlan; and on the 20th July 1766, took a decree for his debt against John and his sister upon the passive titles, as representing their brother Hugh; and in order to complete his right, he used letters of special and general charge against John, charging him to enter heir in special and in general to Margaret, his niece, and also to Hugh his brother, or either of them who had right to the adjudication upon Torry. These letters were executed upon the 3d November 1766; and thereon Buchanan, on the 25th February 1767, adjudged the adjudication upon Torry.
A competition having ensued, it was evident that Grant and Macneil's adjudications were inept; and to supply the defect, Macneil used letters of general special charge against John to enter to his niece Margaret and his brother Hugh; and on the l8th February thereafter, within a year, however, of Buchanan's adjudication, he again adjudged the adjudication upon Torry.
Grant having clearly no right, the competition was maintained betwixt Macneil and Buchanan.
Pleaded for Macneil: That his own adjudication being unchallengeable, it was only necessary for him to shew that Buchanan's was defective; and which it appeared to be on the following grounds:
1mo, As Hugh Maclauchlan was Buchanan's debtor, his debt ought to have teen formally constituted against his representative. For this purpose Buchanan had charged John to enter heir to his brother Hugh; which could be of no avail, John being neither his heir nor executor, but his daughter Margaret. He ought therefore to have constituted his debt against her while in life, or after her death against her uncle John: But as, instead of this, he had taken a decree of constitution against John as heir, and against him and his sister Marjory as executors to Hugh, the constitution was irregular and inept, and the adjudication led thereon must fall to the ground.
2do, Buchanan's letters of general special charge were dated and signeted the 23d October 1766; yet the decree of constitution therein narrated, and on which they proceed, was not extracted till the 29th of that month. As by the form of Court there was no decree till it was extracted, and as it was the grand decerniture alone which was the warrant of all diligence and execution that might follow, the letters in the present instance, as they proceeded, upon a false narrative, and in fact without any warrant, must fall, and the adjudication of course become null and void.
Pleaded for Buchanan:
1mo, The letters of general charge and summons of constitution against John and his sister Marjory, as representing Hugh after Margaret's death, was a proper diligence; for as Margaret had died soon after she was summoned, he had never got the debt constituted against her. It remained Hugh's debt; and in constituting that debt against John, he could only be charged to enter heir to the debtor. As Buchanan however learned, after his debt was constituted, that Margaret was the last person vested in the adjudication, he raised a special general charge against John to enter heir in that subject to Margaret, and thereon obtained his adjudication; which, after Hugh and Margaret were dead, was the only legal way of carrying the subject.
2do, The decree of constitution had been pronounced and put up in the minute-book on the 22d July 1766; and it could be extracted in ten days thereafter. In fact, it had been extracted at the date of the charge; but though it had not been extracted at all, there was nothing to hinder the charge from being raised; for as soon as it was pronounced, and in the minute-book, it was a decree on record; and as such could be set forth in the bill of special charge, the fiat of which required no production. Indeed, the raising of special charges, whenever decree was pronounced, before they be read in the minute-book, or can be extracted, is often necessary to bring adjudgers within year and day.
3tio, The pari passu preference introduced by the statute 1661, c. 62. had no relation to the present question. All the regulations of that enactment related to the consequence of the first effectual adjudication; and in the most express terms it declared what was understood to be such, viz. an adjudication upon infeftment, or where diligence for obtaining infeftment had followed. As no infeftment therefore or diligence for obtaining it had followed upon any of the adjudications in question, and as indeed they never could be rendered effectual in that respect in terms of the statute, the enactment did not apply; and hence they must be preferred according to priority of date, February 1729, Sir John Sinclair contra Gibson, No. 14. p. 248. In the instances where a contrary decision had been given, infeftment at any rate might have followed; which was not the case here.
The following judgment was pronounced; “Sustain the objection to the interest produced for Alexander Grant, that the adjudication led by him against John Maclauchlan, as charged to enter heir to his brother Hugh, and not his niece Margaret, was void and null, so far as concerns the adjudication obtained by Hugh against the estate of Torry; and sustain the like objection to Captain John Macneil's first adjudication of that subject produced. Repel the objections of the decree of constitution, and letters of general special charge at the instance of John Buchanan against John Maclauchlan; and therefore prefer Captain John Macneil and the said John Buchanan pari passu upon the subject in question.”
In a reclaiming petition, Buchanan chiefly pressed the point as to the inapplicability of the statute 1661; but it was observed from the Bench, that it extended to all adjudications whatever; and was an act so favourable to creditors, that the Judges never would give it less effect than it was intended to have. The petition was refused without answers.
Lord Ordinary Hailes.For Macneil, P. Murray.Clerk, Ross.For Buchanan, J. Dalrymple, Maclaurin.
Fac. Coll. No. 18. p. 41.
