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Subject_1 ADJUDICATION and APPRISING. Subject_2 FORMALITIES of the DILIGENCE.
Gordon v. Hunter
Date: 11 February 1680 Case No. No 3.
Where requisition before payment is stipulated in the bond; requisition must be made before adjudication.
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In a competition betwixt Gordon of Troquhen and John Hunter, both having adjudged the same lands; it was alleged, for Troquhen, That Hunter's assignation was null; proceeding upon a bond, payable only upon requisition of forty days; and yet the adjudication, upon the late act, proceeds, without mention of any requisition. It was answered, That, there being no infeftment upon the bond, requisition was not necessary to make it moveable; and, though the debtor could not be charged to make payment till requisition, yet his land might be adjudged, the summons of adjudication being more solemn than the requisition by instrument. It was replied, That the being payable only upon requisition by a notary and instrument, there could be neither process thereon, for payment, nor adjudication; for, if the debtor be not obliged to pay till requisition, his lands cannot be adjudged; which is a legal solution: And, though the cases of adjudications be new, yet action for payment, on such bonds, has been ordinary; against which, this defence has ever been sustained—No process, till requisition be made.
The Lords found, That the adjudication could not proceed till requisition had been used; but Hunter, producing an instrument of requisition, before the adjudication, The Lords sustained the adjudication; albeit it did not bear the requisition produced; and albeit the requisition, being done by the creditor himself, did not bear the bond produced, but did contain the tenor thereof.
