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Scottish Court of Session Decisions >>
Johnston v Johnston. [1679] Mor 263 (2 January 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor0100263-034.html Cite as:
[1679] Mor 263
Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Johnston v. Johnston
Date: 2 January 1679 Case No. No 34.
Undue means of delaying the diligence alleged.
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Johnston of Wamfray having assigned a bond of 10,000 merks to his brother Sheins; there was a decreet-arbitral betwixt them, by which Sheins was to have the lands of Hoprig, he paying Wamfray 8000 merks, albeit Wamfray had adjudged these lands for other debts; which decreet the Lords reduced upon enorm lesion. It was now alleged for Sheins, that Wamfray's adjudication ought not to be sustained, at least Sheins ought to come in pari passu, upon an adjudication to be obtained by him upon the 10,000 merks assigned to him by Wamfray, because Wamfray had dolose stopped Sheins's diligence, by proponing an allegeance, that the assignation granted by him to Sheins, was never delivered, but deposited in Henry Rollo's hands; which was sustained, and the witnesses ordained to be examined, by which year and day elapsed after Wamfray had gotten adjudication of the lands of Hoprig, which was the only subject that could be affected by the decreets of both parties. It was answered, That Wamfray's allegeance was not calumnious, because one of the witnesses being examied, does acknowledge the depositation; but Henry Rollo was never examined till his death, Sheins knowing that he could also depone against him. 2do, Adjudications can never be brought in pari passu, otherwise than by the act of Parliament, being within year and day, which being a statutory privilege, cannot be extended by the Lords. 3tio, Sheins had an evident remedy, that if he had represented to the Lords, that Wamfray had adjudged, and that by his contentiousness, year and day would run and exclude Sheins; the Lords would have adjudged to both, reserving the depositation contra executionem; but it were strange, that Sheins never having insisted to adjudge for the space of ten or eleven years, nor yet obtained a sentence for establishing the debt, should be brought in with Wamfray, who adjudged eleven years ago; neither did the arbiters determine any thing upon the diligence, or delay of any party, whereof there is no mention in their decreet.
The Lords repelled the allegeance, and found that the adjudication could not come in pari passu.
