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.
Subject_3 First effectual Adjudication.

John, Earl of Caithness,
v.
Benjamin Sinclair of Stempster

Date: 8 December 1781

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[Fac. Coll. IX. 120; Dict. 268.]

Monboddo. I learnt, half a century ago, that the heir was eadem persona cum defuncto, and I do not choose to unlearn that. This adjudication is for a personal debt, though secured by infeftment; and so the exception of the Act of Parliament, as to adjudications on debita fundi, will not apply. It is said that here the adjudication is converted into a security; but, as it is held as a security for part of the penalty, it is still.an adjudication.

Braxfield. There is nothing in the specialties. An adjudication, led on the personal obligation, is perfectly good, and will be effectual for the purposes of the Act 1661. The adjudication, although restricted, is still an effectual adjudication. There is more difficulty as to the other point. In the course of 120 years, no example has occurred like the present case; so that the question is new. If an adjudication led against a predecessor, at the distance, perhaps, of fifty years, is to be the first effectual adjudication, creditors would immediately set about tearing the estate to pieces. No action can proceed against the heir within the annus deliberandi. The creditors have no method of carrying on diligence during that space; and it would be a solecism in law to say that the adjudication against the predecessor should regulate the interests of the creditors of the heir, while, at the same time, those creditors cannot stir. The natural construction of the statute is, that it supposes all the adjudications to be led against the same person, and all the debts are held, fictione juris, to be comprehended under one adjudication.

Kennet. Much ingenuity has been shown on the part of the petitioner, the Earl of Caithness. It was in the view of the legislature to introduce, as much as possible, a pari passu preference. I doubt as to the heir having it in his power to plead on the annus deliberandi, so as to prevent adjudications from being led. All objections will be reserved contra executionem, and the heir is not hurt. He may renounce qualificate, and yet may take up the succession afterwards.

President. I think also that the Court will interpose, and not suffer the heir, by pleading the annus deliberandi, to vary the preferences of creditors. If Lord Braxfield's doctrine were just, it must have occurred in some ranking or other. The purpose of the law was to bring in those adjudications which could have competed, had it not been for the maxim, prior tempore potior jure, but not to introduce adjudications which before could not have competed at all.

Monboddo. A first adjudication cannot pass during the annus deliberandi, but a second may.

Alva. The first effectual adjudication is that which is effectual against the hæreditas, not against the persona.

On the 8th December 1781, “The Lords found that Sandside's adjudication must be held the first effectual adjudication;” adhering to Lord Mon-boddo's interlocutor.

Act. Ilay Campbell. Alt. D. Rae.

Diss. Braxfield; non liquet, Kaimes, Ankerville.

N.B. The rest of December 1781 consumed in long hearings on proofs.