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 FORM OF PROCESS.

John Walsh
v.
Creditors of Mr Robert M'Intosh

Date: 17 January 1777

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John Walsh, Esq. having advanced, from time to time, to Mr Robert Macintosh, advocate, a sum betwixt L.25,000 and L.30,000, to be laid out in purchasing in certain debts of the York Building Company, took from Mr, M'Intosh receipts for these sums on loose slips of paper, which he produced in Chancery, in a suit at his instance against Mr M'Intosh.

Afterwards, finding that Mr M'Intosh had an estate in Scotland, he was advised to bring a constitution of the debt against Mr M’Intosh before the Court of Session, wherein he libelled upon these receipts; and the summons was executed edictally. When called, Mr M’Intosh, in absence, was held as confessed, and decreet went out against him. But neither at pronouncing decreet, nor at extracting, were the receipts produced in the clerk’s hands: not only for the reason already given, viz. that they were produced in the suit in Chancery, but that Mr Walsh was shy to trust them in Scotland, for fear of accidents, the sum being great.

The decreet of constitution being extracted, adjudication followed; and, in the process of adjudication, nothing was produced except the decreet of constitution.

Upon this interest Mr Walsh, being infeft, by charter and seasine, on. Mr M'Intosh’s estate, brought a process of ranking and sale thereof against him and his Creditors; and, in the ranking, it was objected to the decreet of constitution, That the grounds of debt were not produced; so consequently it was void and null: and if it was void and null, so also was the decreet of adjudication which proceeded upon it, and in obtaining whereof nothing had been produced as a ground except the decreet of constitution.

Answered, as to the decreet of constitution,—The grounds of debt were all libelled on: the debtor was cited edictally: he was held as confessed, and decreet was pronounced. And now, when challenged, the grounds of debt themselves were produced to show, in a competition, that the debt was truly due. The decreet in absence was by no means void and null: it was only liable to challenge, unless supported; which, in the present case, it clearly was.

And as to the adjudication,—Where an adjudication proceeds upon a constitution, no other ground is necessary to be produced, except the decreet of constitution. The grounds of debt may be produced ex super abundantia; but they are not necessary.

The Lords repelled the objection in both its parts.