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Scottish Court of Session Decisions >>
Competition betwixt Lieutenant Duncan Campbell and Neil M'Vicar. [1755] Mor 277 (17 June 1755)
URL: http://www.bailii.org/scot/cases/ScotCS/1755/Mor0100277-047.html Cite as:
[1755] Mor 277
Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Competition betwixt Lieutenant Duncan Campbell and Neil M'Vicar
Date: 17 June 1755 Case No. No 47.
Adjudication in implement, and adjudication or apprising for debt, are incapable of a pari passu preference.
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Lieutenant Duncan Campbell having purchased the estate of Kirnan, by a minute of sale, from Robert Campbell, apparent heir thereof, did, upon the 3d July 1744, deduce an adjudication in implement of the minute. On the 26th August 1747, he obtained from Sir James Campbell, superior, a charter upon his adjudication; and, upon the 1st September after, was infeft.
Neil M'Vicar being creditor to the said Robert Campbell in a considerable sum due by bond, led an adjudication of the estate of Kirnan upon the act 1672, bearing date 10th July 1744. The adjudication was followed by a charge against Sir James Campbell the superior, 27th May 1745; and in this state the adjudication was produced in process, without being completed by infeftment.
In a ranking of the creditors of Kirnan, M'Vicar insisted that his adjudication should be ranked pari passu with the Lieutenant's adjudication in implement. His reason was, That the same equity which affords a pari passu preference among adjudications for payment of debt, applies to adjudications in implement; that though the act 1661 be mute as to adjudications in implement, the reason is, that such adjudications were at that time unknown; that they were afterward introduced into practice, in imitation of the common statutory adjudications or apprisings; and are therefore not entitled to a higher privilege than their pattern.
Answered, It is a mistake to affirm that adjudications in implement were introduced after the 1661. They are of as old a standing as adjudications cognitionis causa; and both of them were known in practice more than a century before the restoration. By the act 1661, apprisings for debt were brought in pari passu, as also adjudications cognitionis causa. But not a hint of adjudications in implement, though these at that period were no less customary than adjudications cognitionis causa. Nor was this an oversight in the legislature, who could not but see that an adjudication in implement, and an apprising or an adjudication for debt, are not capable of a pari passu preference.
