Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Mr Riven and his Creditors
v.
Patrick Ker

Date: 6 January 1683

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In a competition betwixt Edward Ruthven's Creditors and Patrick Ker, who had adjudged a right of annual-rent out of my Lord Callender's estate, belonging to Riven the common-debtor;—it was alleged for the rest of the creditors, That Patrick Ker could not have the fifth part more than his principal sum and annual-rents; because, 1. The subject of his adjudication being only an annual-rent, which, upon requisition will produce ready money; and so the reason in the Act of Parliament for allowing an additional fifth part, viz. that the creditor is forced to take land for his money, doth not hold. 2. The debtor offers payment of the sum adjudged for, within the legal of five years, which must cut off the claim of fifth part more; as redemption within the legal would extinguish an adjudication or apprising of the whole lands. Answered, I. Non refert whether the subject adjudged be land or annual-rent; for, if the debtor, upon requisition, should refuse to pay, the creditor is as little master of the money as if lands were adjudged, and the fifth part more is granted to creditors, not simply because they take lands for money, but also by way of penalty for the delay of their payment: for, as Stair observes, £100 is the usual penalty for 1000 merks of principal, which, with 50 merks of sheriff-fee, (that is the 20th part,) extends to 200 merks, the fifth part of 1000. 2. Esto special adjudications be redeemable within five, the fifth part is due as in lieu of penalty and sheriff-fee: as apprisings, redeemed within the legal, carry penalties and sheriff-fees, otherwise the adjudger would get no allowance of the expense of his adjudication, or of penalties: for the Act of Parliament, in the clause of redemption, orders only the payment, or consignation of the principal sum and annual-rent the time of the adjudication, the composition to the superior, and charges of infeftment. The Lords repelled these two allegeances, in respect of the answers; and found the fifth part also due.

Page 1, No. 5.

Nota. By the Act of Parliament, creditors, at redemption of partial adjudications, get nothing for expenses in lieu of the fifth part.

Page 2, No. 6.