Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROCESS - ADJUDICATION.
Subject_3 In a process of adjudication, the defender is entitled to take a day to produce a progress, whatever may be the consequence, to the pursuer, of the delay.

Agnes Peadie
v.
Archibald Hamilton

Date: 13 December 1776

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[Faculty Collection, VII. 329; Dictionary, App. I.; Pro.No. II.; Sup. V. 457.]

President. Your Lordships will consider this cause as independent of the Christmas vacation altogether; and you will determine whether, if the demand now made, were made during the sitting of the Court, you would grant it. I never understood that a first adjudication could be on one diet. Ex æquitale there has been an indulgence in order to establish a pari passu preference. But the Court has never relaxed from its forms in order to establish a preference; and yet that is here sought.

Braxfield. I know no case where a first adjudication can be allowed to proceed on one diet. A second may, because a second adjudication admits of no defence. Defences only contra executionem are reserved in a second adjudication. It is common to make two diets of compearance; but, in the case of Hamilton of Bourtreehill, the Lords allowed the summons to be enrolled in one, for it was thought that a summons was not the worse for having an unnecessary diet of compearance. In this case, how can we dispense with the Act 1672, which allows a day to produce a progress? Besides, the intention here is not to obtain a pari passu preference; but, on the contrary, there is a jus quæsitum to the other creditors, through the negligence of this petitioner; and that we cannot frustrate.

Kennet. We cannot go beyond the regulations of the law.

Kaimes. The case comes to this, “Three years are allowed for completing my diligence; but I find that three years are not enough, and therefore you must give me a week or a month more.”

On the 13th December 1776, “The Lords refused the petition.”

For the petitioner, J. Boswell, Mat. Ross.