Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Robert Craig, v. The Creditors of Riccartonholm
Date: 25 January 1783 Case No. No 42.
Adjudication, led after decreet of certification has been extracted, found entitled to no preference in the ranking.
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In the ranking of the creditors of Riccartonholm, the Lord Ordinary found, “That Robert Craig's adjudication having been led after the process of ranking, in which he produced his interest, had been brought into Court, and a decreet of certification pronounced and extracted, he is not entitled to any preference in virtue of such adjudication, and ought, therefore, to be ranked as a personal creditor.”
Against this judgment, Robert Craig reclaimed, and
Pleaded: Adjudications, with the exception arising from the statute 1661, in favour of those which are led within year and day of the first effectual one, are to be considered as sales under redemption, which are preferable according to their priority; nor have the acts 1681 and 1690, authorising the sale of bankrupt-estates, introduced any alteration in this respect. From the nature of this diligence, therefore, no reason can be assigned why the petitioner, upon the production of his decreet of adjudication, should not be preferred to those who either have not adjudged at all, or have taken this measure posterior to him.
The penal effects of a decreet of certification, in cases of this sort, are confined solely to those rights affecting the estate under sale, which existed, and could have been produced when it was pronounced; and no benefit can be derived from thence by creditors who have not been preferred in the ranking. Hence the preference of those rights which have been acquired after the decreet was pronounced, and of those creditors who have no real lien over the estate, must be the same as if it had never taken place. Indeed, were the Lord Ordinary's interlocutor well founded, as a decreet of certification may be obtained in a period far short of a year, it would be in the power of an adjudging creditor to exclude the operation of the statute 1661.
This petition was refused, without answers.
Lord Ordinary, Elliock.For Robert Craig, Cha. Hay.
Fol. Dic. v. 3. p. 14. Fac. Col. No. 83. p. 130.
*** This decision afterwards accounted erroneous. See No 43. immediately following.
