Scottish Court of Session Decisions

Subject_1 PART I.

ADJUDICATION.

George Lang
v.
Robert Gilchrist and William Wallace

Date: 20 December 1776
Case No. No. 8.

A creditor cannot insist for a general decree of adjudication, after an offer is made by the debtor to pay him the whole sum.

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Robert Gilchrist granted an heritable bond to George Lang for the sum of £100 Sterling, containing the ordinary clauses, and binding him to infeft Lang in a tenement of land, with the yeards and pertinents thereof, and in which he was accordingly infeft. Gilchrist having afterward become bankrupt, executed a trust disposition of the said heritable subject in favour of William Wallace for behoof of his creditors. Lang, about the same time, raised a summons of adjudication against Gilchrist, concluding that the said heritable subjects should be adjudged from Gilchrist, and declared to pertain and belong to him. Against this Gilchrist pleaded, that the trust disposition was designed to satisfy both the pursuer and his other creditors, and that there were sufficient funds for payment to him as a preferable creditor. At any rate, it was insisted that the defender was entitled, this being the first adjudication, to take a day to produce a progress, purge incumbrances, &c. in terms of the act of Parliament. The Lord Karnes Ordinary pronounced, 2d Aug. 1776, the following interlocutor:

“Repells the defence founded on the trust disposition alleged to have been granted by the defender for the behoof of his creditors, and assigns the 12th of November next to the defender to produce a progress, purge incumbrances, and fulfil the other points of the act of Parliament, and first alternative thereof anent adjudications, with certification.”

Gilchrist desirous, as he said, to do justice to the pursuer, and to prevent, at the same time, the hardship and loss which would accrue to the other creditors by the adjudication, made offer to the pursuer, by the hands of the attorney for William Wallace, of the principal sum contained in his heritable bond, with interest from the term of payment to the term of Martinmas then next. This offer the pursuer chose to reject; and the progress not having been produced by the defenders, the pursuer extracted an act, which, having come to be called before the Lord Ellioch Ordinary, his Lordship pronounced, Nov. 29th 1776, the following interlocutor:

“Circumduces the term against the defender for not producing a progress, purge incumbrances, and performing the other conditions of the act of Parliament, in terms of the act, and adjudges, decerns, and declares.”

The defenders, considering the Lord Ordinary as exauctorated, applied by petition to the whole Lords, who, upon advising the petition with answers, “found that the pursuer was obliged to receive the principal sum and interest due as at Martinmas last, with necessary expenses; but find that the defenders are liable in the expense of the petition.”

Lord Ordinary, Ellioch. Act. Morthland. Alt. M'Cormick.