Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ALLOWANCE of APPRISING, and ABBREVIATE of ADJUDICATION.

Guthries
v.
Superiors

Date: 20 February 1741
Case No. No 3.

Abbreviates are required, not only of adjudications that came in place of apprisings, but of all other adjudications.

Interlocutor.

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A Common bill of horning, against superiors, upon an adjudication in implement, being presented to the Ordinary on the bills; the Clerk of the bills stated the objection, to the Ordinary, That there was no abbreviate of the adjudication; and, therefore, he could not, without directions, write out the common deliverance, viz. because the Lords have seen the decree marked, and the abbreviate recorded, conform to the act of Parliament.

The Ordinary having reported the objection, the Lords were unanimous, “That, upon the construction of the act of regulations, abbreviates were required, not only of such adjudications as came in place of apprisings, but of all other adjudications;” and so the clerk reported to be the practice.

A variety, however, of things occurred in the reasoning on the Bench. And, first, it was observed, That, in no case, the want of an abbreviate was a nullity; and though, in competition, another, though posterior adjudger, with an abbreviate, would be preferable, yet, as it was effectual against the granter, there seemed to be no good reason, why horning might not proceed upon it.

And, it being answered, That, though it was true, it was no nullity; yet, as it was certain, that there could have no charge proceeded against superiors, upon an apprising, without an allowance, it would appear to be the same in the case of an adjudication, wanting an abbreviate, when the statute, introducing abbreviates, declares them to have the same effect as allowances had before.

It was replied, That there was no parallel; for the messenger, who was judge in the apprisings, could not give warrant for a horning, which was only authorised by the registration of the apprising; or, which is the same thing, the allowance, which was the interposition of the Lords authority; whereas, in an adjudication, the Lords decern against the superior; which, therefore, is of authority, equal with the abbreviate, to warrant the charge; and, therefore, though an adjudication, in implement, without an abbreviate, is not good, in a competition; yet, as it denudes the granter, horning ought to proceed, upon it, against the superior.

But, then, it was further observed, That great inconvenience would arise, to purchasers, should it be found, that horning could proceed against superiors, where there was no abbreviate; as it was the only record of the adjudication. True, it occasions no inconvenience to other adjudgers; for still, in competition with these, the adjudication is ineffectual, without an abbreviate; but, as the want of an abbreviate is no defect, in competition with voluntary purchasers, and that a charge against the superior is such a step of diligence, as saves, to the adjudger, his preference to a posterior voluntary right; posterior purchasers would be rendered very insecure, could horning proceed where there was no record of the adjudication.

And, on this ground, merely, it was, that, upon a vote, it carried, That the Ordinary should refuse the bill of horning.

N. B. At any rate, there is a defect, in the security, from the records, in the case of adjudications; there being no record of the charge against the superior; though it would be still greater, were there no record of the adjudication, which, at least, leads to enquire, whether the superior has been charged.

Fol. Dic. v. 3. p. 10. Kilkerran, (Adjudication.) No 10. p. 6.