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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Sibbald, Supplicant. [1764] Mor 205 (21 June 1764)
URL: http://www.bailii.org/scot/cases/ScotCS/1764/Mor0100205-004.html
Cite as: [1764] Mor 205

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[1764] Mor 205      

Subject_1 ADJUDICATION and APPRISING.
Subject_2 ALLOWANCE of APPRISING, and ABBREVIATE of ADJUDICATION.

John Sibbald, Supplicant

Date: 21 June 1764
Case No. No 4.

A Lord Ordinary having died, after pronouncing decree of adjudication, but before the extract was signed by the Clerk, or the abbreviate was signed by his Lordship; a remit granted to a new Ordinary, to sign the abbreviate, which was allowed to be recorded, though without the 60 days.


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John Sibbald, flesher, and convener of the trades in Cupar, applied, to the Court, by an intimated petition, setting forth, That he had raised a summons of adjudication, on two bills, against John Campbell, vintner in Cupar; and had, on the 6th of March last, obtained decreet, from Lord Edgefield, Ordinary: That an adjudication, at the instance of another person, had been led against Campbell, on the 9th March, 1763; and the abbreviate of it duly recorded on the 19th of April, thereafter.

That Campbell, to disappoint the petitioner of his pari passu preference with the other adjudger, the year and day of whose adjudication was on the point of expiring, when the petitioner's was decerned in, preferred a representation, praying the Lord Ordinary to recall the decreet; or, at least, to stop execution, till he was heard, on certain defences; which his Lordship refused, on the 10th of March.

That, immediately upon this, the petitioner caused write out the extract of the decreet of adjudication, to be signed by the Clerk, and the abbreviate to be signed by the Lord Ordinary; both which were produced.

The Lord Ordinary having died before signing the abbreviates, and the 60 days, allowed for recording them, being now elapsed, since the date of the decreet of adjudication, this application was necessary, that the petitioner's pari passu preference, with the first adjudger, might be secured to him: which, he hoped, the Court would think reasonable; as it was not owing to the neglect of him, or his doers, that the abbreviate had been recorded in the ordinary time. He, therefore, prayed their Lordships to remit, to any of their number, to sign the abbreviate, to have the same effect, as if his Lordship had been the pronouncer thereof himself; and to appoint the Clerks of the bills to receive and record it, as if it had been duly presented to them, within 60 days of the date of the decreet, for that purpose; or to grant him such other relief, to preserve his preference, as their Lordships should think just.

The Lords remitted to Lord Pitfour, in place of Lord Edgefield; with power, to his Lordship, to sign the abbreviate, and to allow the decreet of adjudication to be extracted, and the abbreviate recorded; reserving all objections to any party, having interest, against the validity of the said adjudication, and all answers to such objections, as accords.

Pet. D. Grame. Fol. Dic. v. 3. p. 11. Fac. col. No 138. P. 319.

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


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URL: http://www.bailii.org/scot/cases/ScotCS/1764/Mor0100205-004.html