Duncan Mackay v. The Common Agent in the Ranking of Margaret Watt's Creditors
Date: 11 Dec 1800 Case No. No. 3.
An adjudication set aside, where the debtor was cited on the summons before the previous decree of constitution was extracted, and where the decree of adjudication itself was obtained before the first diet of appearance had elapsed.
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Duncan Mackay, on the 7th June 1796, obtained a decree of constitution for L. 177: 6: 6 against Margaret Watt and John Grieve, her second husband, for his interest, as representing her first husband Daniel Morgan.
From the marking of the collector of the clerks' dues at the bottom of the extract of the decree, it appeared to have been extracted on the 27th July 1796.
On the 8th June, Mackay, in virtue of the decree of constitution which he had obtained the day before, raised a summons of adjudication against Margaret Watt and John Grieve. The latter being out of the kingdom, it was on the 9th June, executed against him at the market-cross of Edinburgh, pier and shore of Leith, upon two diets of sixty and fifteen days.
On the 1st July Mackay presented a petition to the Lords, praying, in order that he might come in pari passu with other adjudications, that the Court would allow the summons of adjudication to be enrolled in the regulation-roll, notwithstanding the second diet had not elapsed. The petition was granted.
On the 3d July, Mackay obtained a decree of adjudication.
A judicial sale of Margaret Watt's heritable property having afterwards been brought, Mackay produced the decree of adjudication, to which the common agent
Objected, 1st, The decree of constitution was not extracted at the time the summons of adjudication was raised, 4th February 1784, Apparent Heir of Porteous; No. 43. p. 132., 20th January 1801, Buchanan against Gray, Appendix, Part 1. voce Adjudication, No. 12. p. 26.
2dly, Although the Court dispensed with the second diet of the summons of adjudication, they neither did nor could legally dispense with any part of the first, 26th November 1794, Cannan, No. 60. p. 12005. As the citation, however, was given on induciœ of sixty days, the first diet of appearance could not arrive till the first day of the winter session 1796, yet the pursuer prematurely obtained decree on the 3d July preceding.
Answered: 1st, A decree always bears the date of the interlocutor which is the foundation of it; and this must be regarded as its legal date, at whatever time it may be extracted. During the sitting of the Court, when the extractors have a load of business, it would be attended with much injustice if the diligence of creditors were retarded, till the extracting of the decree was finished.
2dly, Adjudications do not stand in the same predicament with ordinary summonses. They came in place of apprisings, and as apprisings always proceeded on an induciæ of fifteen days, it is sufficient if that period intervene between the date of citation, and that of the decree of adjudication; Stair, B. 4. Tit. 3. § 33. At all events, in second adjudications, it does not seem necessary that either diet of appearance should be elapsed, when the summons is enrolled; Bankt. B. 4. Tit. 2. § 4. and 37.
The Lord Ordinary sustained the objections.
On advising a reclaiming petition for Mackay, with answers, the Court adhered.
Lord Ordinary, Balmuto.For the Common Agent, Williamson.Alt. Hagart.Clerk, Menzies.
Fac. Coll. No. 207. p. 475.
