Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 RANKING of ADJUDGERS and APPRISERS.

The Creditors of Alexander Hay
v.
James Fleming

Date: 17 June 1794
Case No. No 50.

23 Geo. III. c 18. § 5. Objection to the interest of a creditor who had been conjoined in a process of adjudication, that he had produced, as his grounds of debt, a copy of a bill, and notorial protest taken on it, but not the original bill itself, sustained, although all objections were reserved contra execustionem.

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Alexander Hay, merchant in Canada, became bankrupt in 1786. In summer 1787, an adjudication was led against his estate in Scotland. When, a year from its date was almost expired, the attorney of James Fleming, merchant in London, craved to be conjoined in a subsequent adjudication then brought; and produced, as his grounds of debt, a copy of a bill, a notorial protest taken on it in London, the account attested by the debtor in payment of which the bill was granted, and an affidavit on the verity of the debt made before a magistrate. The bill itself had been sent abroad, in hopes of procuring payment. A decree of adjudication was accordingly obtained, in which all objections were reserved contra executionem.

The bill itself was afterwards produced.

In the ranking of Hay's creditors, it was

Objected to this interest: 1mo, The 23 Geo. III. c. 18. § 5. gives the privilege of being conjoined only to such creditors “as are in readiness for it, and produce the instructions of their debts.” Fleming did not come under this description, a copy of an alleged bill not being a legal instruction of a debt.

2do, Although Fleming had led a separate adjudication on the grounds of debt produced, the objection would have been equally strong at common law. It is a settled point, that an adjudication can proceed only upon a decree of constitution, or a liquid written ground of debt. Fleming had neither to produce. The object of reserving objections contra executionem, is not to enable creditors whose debts are not legally instructed to lead adjudications, but merely to give time for discussing those exceptions against a voucher ex facie valid, which cannot be instantly verified; Fol. Dic. v. 1. p. 11.; 7th March 1794, Creditors of Neil Macneil against Saddler; p. 122. v. 1. of this Dictionary.

Answered: It was the object of the act of Parliament to give the privilege of being conjoined to all creditors, who, had there not been danger from delay, might effectually have led separate adjudications. The claimant might have done so in the present case. The reservation of all objections contra executionem in the adjudication, must have the effect of preventing any objection which can be afterwards removed from hurting the diligence. There is no good reason for distinguishing the present from an objection which affects the amount of the debt. The Court have sustained adjudications led upon grounds much more exceptionable, as upon expired bills, and upon English and York-buildings Company bonds, after the lapse of the long prescription, allowing these objections to be removed by subsequent productions.

The Lord Ordinary sustained the objection, in respect “that by the clause of the statute, in virtue of which the respondent (Fleming) claimed to be conjoined in the adjudication, and was conjoined, reserving all objections contra executionem, the creditors only who are in readiness, and have their grounds of debt to produce can be effectually conjoined.”

On advising a reclaiming petition and answers, it was

Observed on the Bench: An adjudication can proceed only upon a decree of constitution, or a liquid document. The copy and protest show that the bill once existed, but not that it is resting owing. The case may be hard, but this can have no weight in a question among creditors.

The Lords unanimously adhered, by two consecutive interlocutors.

Lord Ordinary, Dreghorn. For the Creditors, M. Ross. Alt. Maconochie. Clerk, Menzies. Fol. Dic. v. 3. p. 15. Fac. Col. No 125. p. 281.