R C BONTINE v GRAHAM (Court of Session)

Several of the creditors of the defender having brought adjudications against the estate for payment of their debts, the pursuer moved the Lord Ordinary to pronounce decree of constitution (reserving all objections contra executionem) without making up or closing a record, in order that the pursuer might bring an adjudication, to secure a pari passu ranking with the other adjudging creditors of the defender.

This was opposed by the defender as incompetent under the judicatory act (6 Geo. IV. c. 120) which declared that no decree could be pronounced except upon a record made up and closed. The only exceptions to this rule were extraordinary actions; but this did not come under that description, being merely an ordinary action of declarator and payment.

It was answered —That as the object of the demand was merely to obtain a decree of constitution, reserving all objections, contra executionem, as a step towards leading an adjudication, it must be considered in its consequences as coming under the description of extraordinary actions referred to in the statute. Unless decree of constitution was pronounced as craved, without abiding the course of preparing and closing the record, the pursuer could not lead an adjudication in time to rank pari passu with the other adjudications which had been brought.

Lord Corehouse reported the case verbally to the Court. The Judges concurred in opinion that the object of the decree of constitution would be defeated entirely, if it were necessary to make up a record before decree could be pronounced; and that, therefore, it might, in its consequences, be considered as one of the extraordinary actions contemplated by the 27th section of the act of Parliament; and that it was consequently competent to pronounce decree de plano, for the purpose of enabling the pursuer to adjudge.

The following interlocutor was pronounced:—‘The Lord Ordinary having heard the counsel for the parties, and advised with the Lords of the First Division of the Court, decerns against the defender for L.10,000 sterling, in terms of the conclusions of the libel, to the effect of adjudication, reserving all objections contra executionem.’