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Scottish Court of Session Decisions >>
Sir Thomas Mongrieff, v the Creditors of Moncrieff. [1725] Mor 242 (00 December 1725)
URL: http://www.bailii.org/scot/cases/ScotCS/1725/Mor0100242-013.html Cite as:
[1725] Mor 242
Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Sir Thomas Mongrieff, v. the Creditors of Moncrieff
1725.
December Case No. No 13.
What meant by the first effectual adjudication.
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In a competition among adjudgers, all within year and day, the subject adjudged being a disposition, procuratory and precept, but upon which infeftment had not followed; the first adjudger craved preference, because his adjudication totally denuded the debtor, having only a personal right: And, as to the other adjudgers within year and day, he pleaded, That the act 1661 does only regulate adjudications of subjects whereupon infeftment is taken; and this, from the words of the act, describing the first effectual apprising, which is declared to be by the first infeftment, or charge against the superior: And the act also supposes, that other apprisings may be led before the first effectual. All which particulars are inconsistent with apprisings of personal rights; the first apprising in such being always the first effectual. It was answered, That the preamble of this clause in the act is general; and respects all apprisings, whether of real or personal subjects, viz. That creditors, at a distance, are prevented by the more timeous diligence of other creditors. And the clause, mentioning the first effectual apprising is not intended as an adequate description of the first effectual apprising, but as a particular example of what, indeed, is the common case. The Lords brought the adjudgers in pari passu.
