Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
L of Clackmannan v. L Barrounie.
Date: 10 July 1629 Case No. No 9.
A bond, in which no charge nor requisition is stipulated, found compriseable, although no charge given.
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In a reduction of a comprising, because the bond containing the sum, for which the comprising was deduced, was heritable and not made moveable; the tenor of which bond was, that the debtor, for the said sum, was obliged to give his creditor infeftment in his land redeemable; and containing a back-tack yearly, for payment of victual, for the farm of the land; and also bearing, “The debtor to be obliged, notwithstanding of the heritable disposition of the lands redeemable, to pay the sum, at the term, therein-contained; and in case of failzie, a penalty;” this was the tenor thereof, and bore not, that the sum should be paid, either upon charge, or requisition to be made therefor, at the term of payment therein expressed, or at any other term, when the creditor should seek the same; but only simply, that the debtor should pay it at that one term, specially expressed in the bond; after which term, diverse years, the money lying over unpaid, the party creditor receiving payment of the duties of the lands, or annualrent of the money, and thereafter comprising the land, for not payment of the principal sum and penalty, the pursuer desired the same to be reduced; because after the term of payment contained in the bond, he had received payment of his annualrent, and so had taken him to his heritable security of the land: And there was no clause whereby he might seek the sum at any other term; and so it was not compriseable; and the rather, there never being a charge used by the creditor against the debtor, before the comprising.—The Lords sustained the comprising, and assoilzied from the season of reduction; for the Lords found, that albeit the bond did not oblige the party to pay the sum, at any term after that term expressed in the bond; yet that was tacitly comprehended therein, otherwise the debtor could not have been holden to pay the sum, if it had not been precisely sought, but had lain over that special term; which were, in justice, hard; and found there needed no charge, seeing the bond required not the same; neither did the receipt of the annual, thereafter, prejudge the comprising; the same being only deduced, for the principal and penalty; and which penalty extended not to so many annuals, as the creditor wanted unpaid to him.
Act. Advocatus and Mowat.Alt. Nicolson, Burnet and Nairn.Clerk, Hay.
Durie, p. 460.
