Scottish Court of Session Decisions

Subject_1 LITIGIOUS.
Subject_2 DIVISION IV.

Litigious by denunciation upon apprising, and citation upon adjudication.
Subject_3 SECT. III.

Mora.

The Representatives of Sir William Binning
v.
The Creditors of Sir James Campbell

Date: 5 December 1749
Case No. No 86.

An adjudication, though prior to a voluntary right, postponed thereto, on account of mora in the adjudger.

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In the ranking of the creditors of Sir James Campbell of Auchinbreck, compearance was made for the Representatives of Sir William Binning of Wallyford, who produced an adjudication led in 1664 of the barony of Glassary in Argyleshire, upon a decree cognitionis causa against Richard Earl of Lauderdale, who had renounced to be heir to Charles Earl of Lauderdale his father, proprietor of the said barony; and thereupon craved to be preferred to Auchinbreck and his creditors upon the said barony, which was part of the subject of the ranking and sale.

And the creditors, amongst other rights which they produced in the person of Auchinbreck their debtor, having pleaded upon an heritable bond for a great sum granted in 1706 to Sir Robert Blackwood by John Earl of Lauderdale, who, upon the death of Earl Richard his elder brother, had served heir in special cum beneficio to his father Earl Charles, which, with the infeftment thereupon taken that same year, Sir Robert had conveyed to Auchinbreck; it was alleged for the Representatives of Wallyford, That their adjudication was preferable to the infeftment on the heritable bond; for that although no infeftment had followed on Wallyford's adjudication, yet being within year and day of Sir William Sharp's, the first effectual adjudication, on which infeftment had followed, it was therefore on the act 1661 preferable to Sir Robert Blackwood's heritable bond. And it was further observed in support of their preference, that Sir William Binning had endeavoured to obtain the possession by an action of mails and duties, pursued on his adjudication in 1699.

But the Lords, on report, found “That notwithstanding that Wallyford's adjudication was within year and day of Sir William Sharp's, and that he had raised a process of mails and duties in 1699; yet as he suffered the same to lie over from the 1699 to the 1706, the date of Sir Robert Blackwood's infeftment, and for several years thereafter, the said adjudication cannot compete with Sir Robert Blackwood's infeftment, nor could interpel John Earl of Lauderdale, proprietor by virtue of his service as heir cum beneficio to Earl Charles his father, and his infeftment upon his estate.”

It is an established point, that the act 1661 concerns only the preference of apprizers and adjudgers among themselves, but statutes nothing with respect to the competition between adjudgers and voluntary rights; that though it is true, that even an executed summons of adjudication prior to a voluntary sale, and on which decree of adjudication follows, though after the voluntary sale, and much more a decree of adjudication prior to the voluntary sale may be preferable, that is not upon the act 1661, but on the head of litigiosity, which flies off, where the adjudger has been in mora of following forth his adjudication.

How long time is necessary to have that effect, has never been fixed, only cases have been determined as they have occurred; and the shortest time that has been sustained to infer such mora is six years, in that case observed by Spottiswood, Hamilton against M'Culloch, No 78. p. 8383. And here, though Wallyford had pursued a mails and duties in 1699; yet it then slept, not only to 1706, when Sir Robert Blackwood's heritable bond was granted, but has never to this hour been wakened, the adjudication not having been heard of till it was produced in this process.

Fol. Dic. v. 3. p. 391. Kilkerran, (Litigious.) No 1. p. 339.

*** D. Falconer's report of this case is No 71. p. 2832, voce Competition.