Scottish Court of Session Decisions

The Gerston Distillery Company (Limited), incorporated under the Companies Acts, carried on business as distillers at Gerston, Halkirk, Caithness, and had a right to the heritable subjects upon which their distillery was erected. By disposition dated 22nd November 1886 the Distillery Company disponed the heritable subjects belonging to them to the Caledonian Banking Company by an ex facie absolute disposition, which, however, was admittedly granted in security of advances, and left the Distillery Company a reversionary interest in the subjects. The Distillery Company fell into difficulties and the Caledonian Banking Company entered into possession of the heritable subjects disponed to them, and advertised them to be sold on 27th Febrnary.

James M'Kidd, ironfounder and engineer, Millbank, Thurso, was a creditor of the Distillery Company, and upon 25th February he raised an action against the Distillery Company, concluding for payment of the sum of £295, with interest and expenses. The summons contained a warrant to arrest upon the dependence, was served edictally upon the defenders, and the inducice thereon would not in ordinary course expire till 10th March; meanwhile M'Kidd learned that William Swanson, joiner, Thurso, who was the creditor of the Distillery Company to a large amount, was taking steps to secure a preference over the reversionary interest by adjudication, and that he had raised a summons of adjudication, which was called in Court on 18th February, and in which the Lord Ordinary ( Kincairney) on 22nd February ordered the usual twenty days' intimation of the summons to other creditors, the same being the first summons of adjudication. Swanson also rendered the said reversionary interest litigious by recording a notice of litigiosity in terms of the Statute 31 and 32 Vict. c. 101, sec. 159.

In these circumstances M'Kidd presented a petition to the Inner House. He averred that Swanson was “understood to maintain that even although he should not obtain decree of adjudication until after the sale of the said subjects, his right as adjudger will affect the reversion preferentially to arrestments used subsequent to the sale, in respect that, so far as concerns his right, the reversion will be a surrogatum for the lands previously rendered litigious. Should this contention be upheld, the petitioner will be seriously prejudiced in his efforts to recover his debt, unless he is put in a position to raise and execute, prior to the sale of the said heritable subjects, a summons of adjudication, which may be conjoined with the adjudication at the instance of the said William Swanston. The sale, as above mentioned, is announced to take place on Thursday 27th February current. In order to raise such a summons the petitioner must first obtain a decree of constitution in the said action pending at his interest against the Gerston Distillery Company, Limited, the inducice on which have not expired. In similar circumstances where special despatch has been required in order to secure the pari passu ranking of adjudgers, your Lord-ships have been in use, by exercise of your nobile officium, to dispense with the inducice, and with the period allowed for appearance, and to remit to the Lord Ordinary with instructions to pronounce decree immediately to the effect of adjudication, reserving all objections contra executionem, and to allow the decree to go out and be extracted ad interim, dispensing with reading in the minute-book. The petitioner humbly craves your Lordships to intervene in the present case to the effect of enabling him to obtain an immediate decree of constitution in similar terms.”

Authorities—Bell's Comm. 725 (5th ed.), i. 762 (Lord M'Laren's ed.); Bontine v. Graham and Others, November 19, 1829, 8 S. 87, and December 17, 1829, 8 S. 263; Scott v. Scott, January 28, 1832, 10 S. 253; Gregg,

Page: 354↓

Petitioner, February 21, 1839, 1 D. 544; Parker on Adjudications, 36, 42.

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