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Scottish Court of Session Decisions >>
David Auchinmoulie of Drumeldrie v Sir William Hope of Balcomy and Others. [1713] Mor 13517 (17 December 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor3113517-048.html
David Auchinmoulie of Drumeldrie v. Sir William Hope of Balcomy and Others
Date: 17 December 1713 Case No. No 48.
Found in conformity to Learmonth against Preston's Creditors. No 45.
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Sir William Hope having obtained a decreet of ranking of the creditors upon the estate of Balcomy, and brought it to a public roup, at which he was preferred as the highest offerer, and got the estate adjudged to him for the price to be paid to the respective creditors as preferred, Drumeldrie, a real creditor upon the estate, against whom the term was circumduced for not producing his interest in the decreet of ranking, raised reduction thereof against Sir William Hope, the purchaser, and the ranked creditors, and insisted for production of the decreet.
Alleged for the defenders; That decreet being a writ in publica custodia, they cannot be obliged to produce it in a reduction, but the pursuer must extract and produce it himself.
Answered for the pursuer; The decreet of ranking being the common interest of all the creditors, and he being a creditor, it would be out of measure hard to exclude him from the use thereof; especially seeing he is willing to pay a proportional part of the charges of extracting, conform to his interest, and to extract it by himself, would more than sink his claim, which is less than the expense of extracting; 2do, The reservation of reduction as accords, in the decreet, implies, that he should have access to make his rights effectual.
Replied for the defenders: Whatever the ranked creditors might have to say for their being indulged the use of the common decreet, the pursuer, who, by his own fault, is excluded, can have no pretence to it, especially for such an end as he wants it for, viz. to overturn it; 2do, The reservation of reduction, as accords; is only in the common method of law, which obligeth the pursuer to produce writs called for that are in publica custodia.
The Lords found, That the pursuer if he insists in his reduction, must satisfy the production himself.
