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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Patrick Nisbet, Merchant in Glasgow, v Walter Stirling, Merchant there. [1759] Mor 59 (16 February 1759)
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Cite as: [1759] Mor 59

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[1759] Mor 59      

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ADJUDICATION in SECURITY.

Patrick Nisbet, Merchant in Glasgow,
v.
Walter Stirling, Merchant there

Date: 16 February 1759
Case No. No 3.

Adjudication, in security of a debt in diem, refused, in respect no proof was offered that the debtor was vergens ad inopiam.

The Interlocutor


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In 1754, William Stirling, surgeon in Glasgow, executed a bond of provision in favour of his daughter Janet, spouse to Patrick Nisbet, merchant there; whereby he became bound to pay L. 250 Sterling, to her, over and above the tocher formerly contracted with her, and that at the first term of Whitsunday or Martinmas, after the decease of his wife, Elizabeth Murdoch, mother of the said Janet Stirling; and to pay L. 600 Sterling to their other daughter Elisabeth.

Of the same date, William Stirling executed two dispositions, in favour of Walter Stirling, the defender, his only son; the one of his land-estate, and the other of his debts, goods, and effects. These dispositions contained this clause:

“That the said Walter, and the subjects hereby conveyed to him, shall be affected and burdened with the annuities, burdens, and provisions, made and granted, or to be made, granted, and conceived by me, in favour of Elisabeth Murdoch my spouse, and the children procreate betwixt her and me.”

Upon the death of William Stirling, his son Walter succeeded to his whole estate, heritable and moveable, with the burden of his mother's jointure, and the above provisions to his two sisters.

Patrick Nisbet having got right, from his wife, to the said additional provision, insisted, as Walter was a young man of little experience, and had launched out into an extensive trade, the consequences of which were precarious, he should find security for payment of the L. 250, when, upon the mother's death, it should fall due.

The parties having disagreed about the terms of this security, Patrick Nisbet brought a process of constitution against Walter, before the magistrates of Glasgow; concluding, That he should be personally decreed to make payment of the debt against the term of payment; upon which he obtained decreet. During the dependence, he also raised inhibition and arrestment against Walter; who thereupon presented a petition to the Court, complaining of these diligences, as oppressive, and hurtful to his credit. The pursuer agreed to pass from his arrestments; but the Court likewise recalled the inhibition.

The pursuer next brought a process of adjudication in security, founded upon his decreet of constitution; only superseding execution till the term of payment should arrive. The defender appeared, and alleged, That all this was done in æmulationem; that an adjudication in security, before the term of payment of the debt, could only be granted when the debtor was vergens ad inopiam.

The Lord Ordinary pronounced the following interlocutor:

“In respect, that an adjudication in security, before the term of payment of the sum adjudged for, is an extraordinary remedy, not allowed, except when the creditor is in danger otherwise of losing his debt, and there is no sufficient ground of such hazard alleged; and that the Lords, upon the like grounds, recalled an inhibition used for the debt now intended to be adjudged for; sustains the defence; and assoilzies.”

Pleaded, in a reclaiming petition, for the pursuer; by the law of Scotland, a creditor in a just and liquid debt, cujus dies cedit, licet nondum venerit, is entitled to the diligence of the law, for the security of his debt. He ought not, indeed, to be allowed to proceed to execution till the term of payment is come: but there can be no reason to hinder him from securing his payment against that term. A debt due, in diem, is as onerous a debt, and equally entitled to security, as any other debt can be. A creditor in a debt already due, has many ways of recovering payment by immediate execution; whereas, a creditor, in diem, has his hands tied up from execution; and, if he is not entitled to do diligence for security, he must often lose his debt, though his all were at stake, and although he plainly foresaw the approaching bankruptcy of his debtor. The adjudication, which the pursuer demands, is no step of execution. It is only a means of securing the debt when it shall become due; and, till that period, can have no consequences hurtful to the debtor, however useful they may be to the creditor. And such diligence has been frequently admitted by the Court; Watkins against Wilkie, 2d January 1728, (Rem. Dec. p. 193. See Arrestment); Sir John Meres against York-building Company, 27th February 1728, (Rem. Dec. p. 205. See Arrestment); and in the case of Easter Ogle, January 24. 1724, (Rem. Dec. p. 89. See Ranking of Apprisers and Adjudgers); it was found, “That an adjudication in security for a daughter's bond of provision might proceed, and compete with the other creditors, though the term of payment was not till her age of eighteen years, posterior to the competition.”

This diligence for security is a just and legal remedy, competent to every creditor in diem; not an extraordinary remedy, to be granted only when the debtor is vergens ad inopiam. Where malice and emulation appear clearly to be the motives of proceeding, a creditor may indeed be barred from this legal security in particular cases; but, in ordinary cases, where nothing of that kind appears, the law must have its effect; and every creditor must be allowed to take proper care of his own interest. In the present case, the defender's circumstances, as a young man, deeply engaged in trade, sufficiently point out a reason for the pursuer's being anxious to have a proper security for his debt. The fortunes of all merchants are precarious; and it is a very nice and difficult matter to know when a merchant is vergens ad inopiam, as the greatest bankruptcies often happen in the most sudden and unexpected manner. Besides, to be obliged, on an occasion of this kind, to point out even just causes of suspicion, would do a merchant's credit much more harm, than any right in security could do. And, if the defender apprehends any bad consequences from this process, he has it in his power to prevent it, either by giving personal security, or by offering a progress of lands, equal to the debt; which last is the more reasonable, as it is plain, from the above recited clause in the dispositions, that his father intended to make the provisions of the daughters, a real burden upon the land estate, disponed to his son; although he has erred in the conception of the clause, by making it too general for that purpose.

Answered the defender, The ancient diligence of apprising, in the law of Scotland, as well as that of adjudication, which was introduced to supply its place, by the statute 1672, are properly executory diligences; and proceed upon the supposition that the debt is due, and that the debtor is in culpa, in not performing his obligation; and from the whole stile of our acts of parliament, and the words and procedure in These diligences, it is obvious, that they do not apply to debts that are not become due. So the Court decided, 18th July 1699, Chalmers against the creditors of Shaw, (Fount. v. 2. p. 61. See Legal, Diligence). No creditors has, de jure, a title to demand the legal diligence of adjudicaton, unless he can subsume, that his debt was due, and ought to have been paid before his demand of adjudication. At the same time; it is true, that the Court has sometimes allowed adjudications to be led for security of debts before the term of payment. But this is not founded, either in the common law, or in any statute. It is an interposition of the nobile officium of the Court; and is never exercised, but in cases where a creditor, without such interposition, is in imminent hazard of losing the subject to be affected by his diligence. For instance, when other creditors, whose debts are become due, are carrying on diligence by adjudication; if a creditor, in diem, is not allowed to concur with them within the year, he must be totally excluded; and therefore the Court will allow him to lead an adjudication in security. Such was the case of Easter Ogle, mentioned by the pursuer; but no instance has occurred, where an adjudication was allowed before the term of payment of the debt; unless where the creditor was in apparent hazard of losing his debt, if not allowed this extraordinary remedy: and, it is in all cases incumbent on the creditor, who applies for such extraordinary interposition, to prove the necessity of it, from the hazard he is in of the subject being evicted from him by the diligence of others. Without such evidence, the Court will not interpose, to put a weapon in his hand, which the law does not give him, in order to distress a solvent debtor, who is ready to pay his debt as soon as it becomes due, or can be demanded.

The pursuer's doctrine, “That such diligence in security can have no effect against the debtor, till the debt becomes due,” stands on an improper foundation. Though the creditor can draw nothing by his diligence until the debt becomes due; yet it must, in the mean time, have very distressing consequences with respect to the debtor. It commences a prescription of year and day, within which all his other creditors must carry on adjudications, whether their debts are due or not. If this was to be allowed, it would be impossible to carry on commerce in any shape. Lord Stair, lib. 1. tit. 17, § 15. has laid down the rule of law very differently from what is contended for by the pursuer. His words are:

“Legal execution is not competent ordinarily till delay, because none should be pursued till he have failed; yet, in some cases, the debtor may be pursued before the term, to pay at the term, as si vergat ad inopiam.”

Here the rule is laid down, and the exception. The pursuer's plea would convert the exception into the rule; and by that means would throw every debtor, who is ready to pay his debts punctually, as soon as they become due, into the same distress as if he had already failed in payment, and made execution against his effects necessary. The diligence now insisted on is a stronger step than either the former arrestment or inhibition, which the Court dismissed as nimious; and is evidently emulous and vexatious, as the defender's credit is undoubted, he being worth several thousand pounds Sterling, and only engaged in the inland trade of manufactures, and not in any hazardous foreign trade. Neither are any of his creditors, or his other sister, who has a much larger claim upon him than the pursuer, making any demand upon him; being perfectly satisfied with his ability to pay. And although the defender, for peace sake, offered the pursuer security for his debt on reasonable terms, which he rejected; yet he is under no obligation, by law, to convey his lands for payment of a debt that is not due.

“The Lords adhered to the Lord Ordinary's interlocutor, as on p. 60.; and found expences due.” (See Inhibition.)

Act. And. Pringle. Alt. Ferguson. Fol. Dic. v. 3. p. 2. Fac. Col. No 173. p. 307.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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