Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Orrock v. Morris
Date: 29 November 1677 Case No. No 39.
Exorbitant penalty.
An apprising led for termly failzies, in an infeftment of annualrent, sustained only to the extent of the true interest and damage of the appriser.
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William Orrock of Balram, having used an order of redemption of several apprisings against his estate, pursues a declarator against David Morris, That the apprisings, in so far as not satisfied by intromission within the legal, are yet unexpired by the order, and satisfiable by payment of the surplus; which coming to an account, it was alleged for the pursuer, That the sums where upon these apprisings proceeded, were secured by infeftment; which, though they bore requisition, yet in the clause of requisition, there was only an obligement to pay the principal sum, annualrent, and penalty; but not to pay any termly failzies; and yet the apprisings were led for all the termly failzies, which should have abidden declarator; albeit they had been in the clause of requisition. 2do, Such failzies, even after apprisings, are modifiable by the Lords.—The defender answered, That penalties in bonds, after apprisings, which is the ultimate diligence, are not accustomed to be modified, or the apprising to be quarrelled on that ground; and the termly failzies are but a penalty for the annualrent.
The Lords found, That if the termly failzies were not mentioned in the clause of requisition, for which the apprising proceeded, they should not at all be sustained in the account, but deduced; and though they were in that clause, that they ought to be modified according to the true damage and interest of the appriser, and that they were not in the case of ordinary penalties in principal sums.
