Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Irving v. the Laird of Drum
Date: 31 January 1679 Case No. No 7.
An apprising led by a trustee, for behoof of the cedent, upon a bond, of which part was paid, restricted to the principal sum, and annualrents due, without penalties, or accumulations.
An apprising led by an assignee, for his own behoof, upon a bond, of which part was paid to the cedent, without the assignee's knowledge, restricted to the principal sum, and annualrents, to be accumulated at the date of the apprising.
An assignee, having knowingly apprised for more than due, the apprising restricted to principal and current annualrents, without penalty, or accumulation of annualrents.
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Francis Irving having apprised the estate of Drum, for his own, and his brother and sister's bonds of provision, extending to L. 36,000 principal; for which there were infeftments of annualrents granted, with termly failzies; and for all (being accumulated in one principal sum by the apprising now expired), Francis craves declarator of his, irredeemable right to the lands apprised. It was alledged for Drum, That he had raised reduction of the apprising, which he had repeated, by way of defence, on these grounds: 1mo, That the apprising, in so far as it was for Charles's portion, ought to be reduced; because Charles, by his backbond, obliges him to relieve Drum of 4000 merks, wherein Drum was cautioner, for him, to Mowat, factor in Paris. The pursuer answered, 1mo, That Francis, being an assignee, was not obliged to know of the back-bond. 2do, Charles had obtained decreet, of suspension against Drum, wherein he alleged upon this backbond, and failed to produce it. 3tio, That backbond was no discharge, but an obligement to deduce or detain. 4to, Mowat's bond was for Charles's entertainment in France, which Drum, as heir to his father, who was obliged to aliment his brother Charles, should have paid himself.—The defender replied, That Charles's back-bond contained an express clause of retention of Mowat's sum, in case of distress; and that the back-bond was not produced at the time of Charles's decreet of suspension, because there was then no distress. But now Mowat has distressed Drum, and apprised his estate; so that there is not here alledged any ground of compensation; which has no effect till it be proponed; but the back-bond having a clause of retention, is, in effect, a discharge conditional, in case of distress; neither was Drum obliged to aliment his brother, he having a portion of his own; and, however, Charles having insisted upon no such ground, but having given his back-bond for retention, there can be no further question upon it. And, if need be, it is offered to be proven, that the apprising, as to Charles's portion, is for his own behoof; and therefore, as to him, it is in the same case, as if he had apprised in his own name, and so had fraudfully, & contra bonam fidem, comprised, for that which he knew was not due, and which the Lords have still sustained, to annul apprisings simply.
2do, The pursuer has apprised for a term's annual of Charles's sum, which was not due, and that fraudfully, contra bonam fidem; because, by a decreet of suspension, at Charles's instance, produced, it is evident, that Charles, by his oath acknowledges, that three terms of his annualrent were paid by Drum; which decreet is long prior to the apprising, and belonged to Francis as assignee; so that he had knowingly apprised for more than was due. And albeit the Lords are favourable in apprisings, for security of creditors' just interest, yet quoad the exorbitant advantages thereof, by expiring of the legal, or by making the annualrents, penalties, termly failzies, to be principal sums, and to bear annualrent; the Lords consider the same, strictly. And here the portions are very great, considering the burden of Drum's estate; and the penalty is most exorbitant; and the termly penalties apprised for without declarator; which, at the date of the apprising, amounted to L. 8000, and now to L. 15,000; and, by the act of Parliament 1621, anent apprisings, there is no mention of the satisfaction of penalties.—The pursuer duplied, That he had proceeded bona side, and had never received one farthing of his annualrent, and had been at vast expences, and did not insist for the expiring of the legal, And, apprising being the ultimate diligence, the Lords never modify penalties, unless there be defects in the apprising. For though the act of Parliament foresaid, as to the satisfaction of apprisings, mentions not penalties, but principal sums and annualrents, &c.; yet thereby principal sums are meant, as they are accumulated in the apprising, wherein the penalties are comprehended.
The Lords found the reason of reduction relevant to be proven by Francis's oath, that the apprising quoad Charles's sum was for Charles's behoof, to reduce the same, as to Charles's part, to his principal sums, and annualrents thereof, without penalties or accumulation; in respect of his bond, containing the clause of retention; and of Mowat's distress, by apprising after the decreet of apprising; in which Drum failed to produce the back-bond; which could not then have been effectual: But in case it be not proven, that the apprising was for Charles's behoof, found, That the same ought not only to be retained, with the abatement of Mowat's sum, but they reduced the same as to the penalties, and termly failzies; and sustained the same, as a redeemable security for the remainder of Charles's principal sum, and annualrents thereof, due at the time of the apprising; being thereby accumulated into one principal; and thereby reduced, as to the whole penalties, and failzies in the apprising. And, as to the second reason; if, by Charles's bond, it appear, that the first term of his annalrent was only Martinmas 1662; that the pursuer had apprised for a term more than was due knowingly, after his assignation by Charles, found, ad bunc effectum, To reduce the sums to the principal and current annualrents only, without penalties, failzies, or accumulation of the annualrents. *
Fol. Dic. v. 1. p. 7. Stair, v. 1. p. 684.
* Lord Fountainhall thus mentions the same case:—In the action betwixt Francis Irvine, and his brother, the Laird of Drum, the Lords reduced Francis's comprising to the principal sum and annualrents, and lopt off the Sheriff-fees, and penalties, because it was deduced for greater sums than were truly resting owing at the time of the leading thereof; though it was only a quarter, or half a year's annualrent more, and Francis was only assignee, and so could not know of it. The Lords, in some such cases, only restrict the comprising, but do not annul it.
