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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kidd Petitioner [1890] ScotLR 27_353 (26 February 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0353.html Cite as: [1890] ScotLR 27_353, [1890] SLR 27_353 |
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Page: 353↓
A distillery company having disponed their heritable estate in security of advances with a reversionary interest to the disponers, the heritable creditors advertised the subjects for sale on February 27th. A, a creditor of the company, on February 25th raised an action for payment of his debt, and arrested on the dependence. The inducice would expire on 10th March. He meanwhile learned that B, another creditor, in order to secure a preference over the reversionary interest of the company, had raised a summons of adjudication which had been called on February 18th, and of which the usual twenty days' intimation had been made on February 22nd; and further, had also rendered the reversionary interest litigious by recording a notice of litigiosity in terms of the statute, and maintained that his right as adjudger would affect the reversion preferentially to arrestments used subsequent to the sale. In these circumstances A desired to raise and execute prior to the sale of the heritable subjects a summons of adjudication which might be conjoined with the adjudication at B's instance, and in order to raise such a summons he required to obtain decree of constitution in his action against the company.
A petition by A to dispense with the inducice on his action against the company, and calling days, and to remit to the Lord Ordinary to pronounce decree thereon to the effect of adjudication, reserving objections contra executionem, and to dispense with reading in the minute-book, was granted.
The Gerston Distillery Company (Limited), incorporated under the Companies Acts, carried on business as distillers at Gerston, Halkirk, Caithness, and had a right to the heritable subjects upon which their distillery was erected. By disposition dated 22nd November 1886 the Distillery Company disponed the heritable subjects belonging to them to the Caledonian Banking Company by an ex facie absolute disposition, which, however, was admittedly granted in security of advances, and left the Distillery Company a reversionary interest in the subjects. The Distillery Company fell into difficulties and the Caledonian Banking Company entered into possession of the heritable subjects disponed to them, and advertised them to be sold on 27th Febrnary.
James M'Kidd, ironfounder and engineer, Millbank, Thurso, was a creditor of the Distillery Company, and upon 25th February he raised an action against the Distillery Company, concluding for payment of the sum of £295, with interest and expenses. The summons contained a warrant to arrest upon the dependence, was served edictally upon the defenders, and the inducice thereon would not in ordinary course expire till 10th March; meanwhile M'Kidd learned that William Swanson, joiner, Thurso, who was the creditor of the Distillery Company to a large amount, was taking steps to secure a preference over the reversionary interest by adjudication, and that he had raised a summons of adjudication, which was called in Court on 18th February, and in which the Lord Ordinary ( Kincairney) on 22nd February ordered the usual twenty days' intimation of the summons to other creditors, the same being the first summons of adjudication. Swanson also rendered the said reversionary interest litigious by recording a notice of litigiosity in terms of the Statute 31 and 32 Vict. c. 101, sec. 159.
In these circumstances M'Kidd presented a petition to the Inner House. He averred that Swanson was “understood to maintain that even although he should not obtain decree of adjudication until after the sale of the said subjects, his right as adjudger will affect the reversion preferentially to arrestments used subsequent to the sale, in respect that, so far as concerns his right, the reversion will be a surrogatum for the lands previously rendered litigious. Should this contention be upheld, the petitioner will be seriously prejudiced in his efforts to recover his debt, unless he is put in a position to raise and execute, prior to the sale of the said heritable subjects, a summons of adjudication, which may be conjoined with the adjudication at the instance of the said William Swanston. The sale, as above mentioned, is announced to take place on Thursday 27th February current. In order to raise such a summons the petitioner must first obtain a decree of constitution in the said action pending at his interest against the Gerston Distillery Company, Limited, the inducice on which have not expired. In similar circumstances where special despatch has been required in order to secure the pari passu ranking of adjudgers, your Lord-ships have been in use, by exercise of your nobile officium, to dispense with the inducice, and with the period allowed for appearance, and to remit to the Lord Ordinary with instructions to pronounce decree immediately to the effect of adjudication, reserving all objections contra executionem, and to allow the decree to go out and be extracted ad interim, dispensing with reading in the minute-book. The petitioner humbly craves your Lordships to intervene in the present case to the effect of enabling him to obtain an immediate decree of constitution in similar terms.”
Authorities—Bell's Comm. 725 (5th ed.), i. 762 (Lord M'Laren's ed.); Bontine v. Graham and Others, November 19, 1829, 8 S. 87, and December 17, 1829, 8 S. 263; Scott v. Scott, January 28, 1832, 10 S. 253; Gregg,
Page: 354↓
Petitioner, February 21, 1839, 1 D. 544; Parker on Adjudications, 36, 42. At advising—
The Court pronounced this interlocutor:—
“Dispense with the induciœ of the summonsat the instance of the petitioner set forth in the petition; authorise the same forthwith to be called by the clerks of the Lord Ordinary to whom the same shall be marked, without abiding the course of the printed roll: Further, dispense with whole term allowed for seeing the summons when called: Grant warrant for the immediate enrolment of the said summons in the roll of the said Lord Ordinary, and remit to and authorise his Lordship to call the same if necessary without an hour, and to pronounce thereon immediately decree for Two hundred and ninety-five pounds sterling in terms of the conclusions of the summons to the effect of adjudication, reserving all objections contra executionem: Dispense with reading in the minute-book the decree so to be pronounced, and grant warrant to the Extractor of Court to give immediate extract ad interim of the decree to be pronounced, and decern.”
Counsel for the Petitioner— M'Lennan. Agents— Philip, Laing, & Company, S.S.C.
