Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 INDUCIÆ LEGALES.

Agnes Peadie and Factor, Petitioners

Date: 14 December 1776

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The Creditors of a defunct, doing diligence to affect his estate within three years after his death, are preferable to the Creditors of the apparent heir. This preference is founded on the Act 1661, c. 24, which proceeds upon a narrative, “That it is just that every man's own estate should be first liable to his own debt, before the debts contracted by his apparent heir.” But although thus far the Creditors of the defunct are in a more favourable case than those of the apparent heir, yet if they have delayed so long to bring an adjudication against the predecessor's estate, as not to leave time to obtain decreet within the three years, without dispensing with the induciæ legates of the summons, or the induciæ deliberatoriæ, or other forms of Court, the Lords will refuse to do so. In this case the favour of a pari passu preference of Creditors, which is the great argument for dispensing with forms in a second adjudication, is reversed, and turns directly the other way. And therefore Agnes Peadie having raised a summons of adjudication, upon one diet, against an apparent heir furth of Scotland, in order to obtain a preference upon the predecessor's estate above the creditors of the apparent heir,—and the induciæ not expiring till the 11th of January 1776, which fell within the period of the Christmas vacation ; the Lords, (14th December 1776,) refused to give her any relief. They could have altered their adjournment, or perhaps authorised an Ordinary to sit, and to decern in it; but they would do neither. They considered the case as they would have done had there been no vacation. Although that had been the case, and that the summons had been called on the 11th of January, they thought it behoved to have awaited the ordinary forms of giving out to see, and enrolling, and so could not have been decerned in, till the three years were expired. Besides, they doubted if one diet in such a summons of adjudication was sufficient; (see Form of Process.) They thought it was not, being confessedly a first adjudication ; and, further, that, if the debtor compeared and took a day to produce a progress, there was neither law nor equity in refusing him that alternative.

They refused the petition unanimously.