Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Earl of Panmuir v. Durham
Date: 30 November 1680 Case No. No 40.
Exorbitant penalty.
A penalty on a principal sum, where exorbitant, was restricted to the tenth part of the principal sum; and this after adjudication had been led.
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The Earl of Panmuir having wadset Durham of Grange's lands, for 26000 merks of principal, and 5000 merks of penalty; containing a clause, That seeing Panmuir had supported him in money, and lent him in his necessity, that if he happened to sell his land, he should give my Lord the first offer, and prefer him, he paying as great a price as another would give. Panmuir adjudges for the same sums, and pursues for removing. The defender offers the principal and annualrent at the bar, and so much of the penalty, as the Lords should modify, providing that the pursuer should renounce the clause of preference. The pursuer answers, That the decreet of adjudication, made principal and annualrent into one sum, bearing annualrent; after which there could be no modification, which was never sustained in apprisings; in place of which adjudications are now come.——It was replied, That the Lords had been frequently in use to modify penalties in apprisings, and adjudications, if they be exorbitant, especially before they attain possession, or come to singular successors; and it were against reason, that if an indigent debtor should make a penalty equivalent to the principal, that the single sentence of adjudication, proceeding upon a summons of six days, should exclude all remedy against the common privilege of all sovereign courts, to modify exorbitant penalties; which cannot be hindered, though parties should, upon never so peremptory terms, renounce the same; and, therefore, the Lords always modify termly failzies and penalties in adjudications and apprisings; and, as to the clause of preference, it is an unjust monopoly, for who would ever enter in terms of buying the defender's land, if he knew it were to no purpose, but that Panmuir would get it: But seeing this clause is contained in the contract of wadset; if Panmuir should prevail and reserve it, it would infer taking of usury more than the annualrent; but, being in the wadset, it can only be understood to be in the same, while it stands unredeemed.
The Lords found this penalty exorbitant; the ordinary penalties being 100 pounds for 1000 merks, which doth not so increase when sums become great; and therefore they modified the penalty to the tenth part of the principal, and the annualrent thereof since the adjudication, and decerned Panmuir to renounce simply all contained in the wadset, without exception of the clause of preference.
