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Calder v Ogilvy. [1712] Mor 197 (31 January 1712)
URL: http://www.bailii.org/scot/cases/ScotCS/1712/Mor0100197-012.html Cite as:
[1712] Mor 197
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Calder v. Ogilvy
Date: 31 January 1712 Case No. No 12.
Reasons of reduction and nullity, which may be instantly verified, with be received.
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Middleton of Balbegno having granted a bond of provision to his younger children, and Calder of Assuanly, as assignee, craving adjudication; compearance is made for Mr John Ogilvy, advocate, who produces a disposition of the lands craved to be adjudged, with a base infeftment thereon, and repeated a reduction, and craved the adjudication to be stopped medio tempore; his reasons being in jure and instantly verified.—Alleged, Adjudication being a processus executivus et summarius, cannot be stopped by a third party's intervention; but it must be served contra executionem in the mails and duties. It is true, a debtor may hinder lands from being adjudged, if he instantly prove payment or compensation; but the instructions must be very clear, else they will not be received in hoc ordine: But much less will a right, flowing from my debtor, to his brother-in-law, bearing love and favour, compete with me, who am likewise in a reduction of his right; for at this rate, a man that has a forged defective null right, shall stop lawful creditors on pretence of nullities in their debts, and possess the estate to the scorn of justice. And if Mr Ogilvy's right be good now, it will be as good when it comes in regularly to be tried: And it was so decided betwixt the Lord Anstruther and Seaton of Northbank, as assignee by the Lady Largo, where the Lords refused to stop the adjudication; and the like betwixt Hamilton of Rosehaugh and Haggs.*To which add Stair's opinion, tit. Dispositions, § 47, who quotes a decision out of Spottiswood.† Neither is he who officiously obtrudes himself, so favourable as a party called; and to allow him to quarrel my right, when I am stopt in my diligence and title to quarrel his, is like the setting two men in the field, allowing weapons to the one, but not to the other, which is neither agreeable to the rules of honour nor justice: For, when I come to repeat my reason of reduction, you'll tell me I cannot, because I am but a personal creditor, and you are infeft.—Answered, I being proprietor, I have very good interest to stop any from adjudging my land. Video rem meam agi. I am not to involve you in a long plea, my nullities are intrinsic, arising ex facie scripturæ, and instantly verified; and such have always been received, as was found Livingston contra the Lord Forrester's heirs, 22d July 1664, (No 6. h. t.); and Boyd contra Boyd, 26th July 1676, (No 1. h. t.); and recently, Commissary Campbell got his lands scored out of the adjudications against Dalmahoy. And Hamilton of Bangonr stopt the Lady Ormiston's adjudication, on his repeating reasons of reduction verified by the decreet; and I will not suffer my cause to he wounded by your adjudging. And as it is in self-defence, so here principiis obstandum;
* See General List of Names.
† Cairncross against Lord Drumlanrig, p. 43. v. 1. Quarto Dictionary.
and if your right be null, you cannot complain; for damnum quod quis sua culpa sentit sentire non videtur. And Stair is misapplied; for tit. Competitions, § 27. yields, that exceptions instantly verified are competent against adjudications; and it must be still so while our good laws against multiplying of processes stand in vigour; and a present trial saves expences to both parties.——The Lords sound, before any adjudication, Ogilvy might insist in such Reasons of reduction and nullity as were instantly verified; but ordained him to condescend thereon, that it might appear of what kind they were. My Lord Forglen having proposed, if he might vote in this case, one of the parties having married his niece; the Lords found he might be declined in any cause immediately carried on by his niece, but not in her husband's concerns, not derived from her. (See Declinator.)
