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James Cheape and James Lindsay v Donald Campbell and his Father's Creditors. [1796] Mor 5301 (29 January 1796)
URL: http://www.bailii.org/scot/cases/ScotCS/1796/Mor1305301-047.html Cite as:
[1796] Mor 5301
Privilege of selling the predecessor's estate by a public auction.
James Cheape and James Lindsay v. Donald Campbell and his Father's Creditors
Date: 29 January 1796 Case No. No 47.
The creditors of the ancestor are entitled to lead adjudications during the dependence of an action of sale, at the instance of the heir apparent, where there is no immediate prospect of the estate, being sold, and where the interest of the debts is not regularly paid.
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Captain Donald Campbell, as heir apparent to his father, brought a sale of the lands of Barbreck and others, in terms of the act 1695, c. 24.
During its dependence, James Cheape and James Lindsay, heritable creditors of his father, obtained decrees of constitution cognitionis causa against him, and in order to accumulate their debts, upon which no interest had been paid since Martinmas 1792, they raised adjudications, which the Lord Ordinary ordered to be intimated in common form.
Captain Campbell and the other creditors
Objected; Actions of sale at the instance of the heir apparent, are, in reality, brought for behoof of the creditors at large. The decree of sale has the same effect with a decree of adjudication at their instance, and on that account supersedes the necessity of adjudications by particular creditors, 10th June 1747, Maxwell, voce Ranking and Sale; act of sederunt, 11th July 1794. Although the pursuers should succeed in their attempt, it would not improve their security for the principal and interest due to them; and the expense arising from the number of adjudications which would necessarily be led, in order to come in pari passu with them, would more than counter-balance any advantage which they might otherwise derive from the measure.
A petition, containing these objections, was appointed to be answered in the end of February 1795, but hopes being entertained that the lands would soon be sold, the Court delayed advising the cause till 29th January 1796; when the prospect of a sale being still at some distance, it was
Observed on the Bench; In general, an action of sale at the instance of an heir apparent, renders adjudications by individual creditors unnecessary. But, in the present case, the adjudications ought to be allowed to proceed, that the pursuers may have the penalties and accumulations as a compensation for the delay in payment of their interest.
Some of the Judges even doubted, if the Court ought to interpose in any case to stop an adjudication.
The Lords unanimously ‘allowed the adjudication to proceed.’
Act. Hope.Alt. G. Fergusson.Clerk, Home.
Fac. Col. No 197. p. 475.
