Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. I.

Libel.

Alexander Wedderburn
v.
Henry Crawford

Date: 31 December 1709
Case No. No 33.

Process sustained on a summons of sale past without a bill, in respect of the fonder custom to do so, but in future such summonses are only to be expede on bill.

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Alexander Wedderburn, Town Clerk of Dundee, being creditor to Henry Crawford, merchant there, raises a process of sale of his lands on the statute of bankrupt. Compearance is made for Nicolson and Low, likewise creditors, who object no process, because all summonses of sale ought to pass by bill, and bear ex deliberatione Dominorum Concilii, which this does not; and though the act 17th 1681, anent judging bankrupts' lands speaks not expressly of this, yet it has the equivalent; for it requires the intimations of the sale to pass by deliverance; and if adjudications, which have a legal reversion, require a bill, then sales which adjudge the property, ought much more to pass so. Answered, There is neither law nor act of Parliament to appoint summonses of sale to pass on bills, and de facto few of them do so, as appears by a declaration under the hands of sundry writers to the signet, and if the Lords should sustain this as a nullity, it may cast many of the processes whereon purchasers think themselves secure; and all the use of a bill is in case the summons should miscarry, they may have a new extract from the signet. The Lords considered the hazard and danger that might redound to many bygone purchasers at roups, if this were sustained, and therefore repelled the nullity; but wished there might be some order and regulation to correct this abuse in time coming.

Fol. Dic. v. 2. p. 177. Fountainhall, v. 2. p. 550. *** Forbes reports this case:

1709. December 31.—In the action of sale of the lands of Halcartoun, pertaining to Henry Crawford, carried on at the instance of Alexander Wedderburn and others, compearance was made for Robert Nicolson and others, who alleged, That no process could be sustained, in respect the summons was past without a bill and deliverance of the Lords; whereas all summons of sale ought to pass by bill, specially narrating the act in virtue whereof the sale is raised; because, 1mo, Summonses of adjudication, that have neither so summary nor universal an effect as sales, require a bill; 2do, By the act 17th Parliament 1681, intimations, which are but consequenties of the procese of sale, should pass ex deliberatione Dominorum Concilii; and much more is a bill requisite to found the summons itself.

Ansnwered for the pursuer, No law appoints summonses of sale to pass upon bill; yea, these pass of course, because founded upon statute, the only design of a bill when used, being in order get an itract of the summons, in case it should be lost during a long dependence of the process. No parallel is to be drawn from a summons of adjudication to that of sale, because adjudications, by uniform and universal custom pass by bill, perhaps for clearing the secretary's dues, whereas summonses of sale go otherwise, being founded only upon the common debtor's circumstances, and the pursuer's title as a real creditor. Nor can any argument be fetched from letters of intimation, which need no bill, because the act and commission is their warrant, and they pass per actum Dominorum, and are not subscribed by writers to the signet, but by clerks of Session.

The Lords sustained process in the present case, in respect of the former custom, and the inconveniency that would otherwise arise to many who have bona fide purchased upon sales, wherein the formality of a bill was not observed; but the Lords revoked to wake an act of sederunt, that no summons of sale should hereafter pass without a bill.

Forbes, p. 383.