Scottish Court of Session Decisions

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

M'Bratre of Netherwood
v.
Thomas Rome

1683. December.

Click here to view a pdf copy of this documet : PDF Copy

In a declarator of extinction of an apprising, it was alleged, That the same could not be effectual as to accumulations and full penalties, but only for the principal sum, annual-rent, and necessary expenses, in respect the appriser's right to the bond, which was the ground of the apprising, flowed allenarly from the creditor's heir, although some annual-rents due before his decease are apprised for, which fell under executry; which ought to cut off accumulations, even as to other sums to which he had right from the heir. Answered, Where any ground of doubt doth appear from the right comprised for, as, if the bond were conditional, or payable at a term after a third person's decease; in that case, if the appriser did not previously declare the condition purified, or if he apprised while the said party was actually living,—there might be some reason to cut off accumulations: but here the bond apprised for being heritable, the appriser had good reason to believe that his right from the heir was sufficient, and was not obliged to inquire when the defunct died; and, though the apprising do not subsist for these annual-rents that fall under the executry, to which the appriser had not a good title, yet, seeing he had a putative title to these, and no dole can be presumed, the apprising quoad other sums, to which his title was unquestionable, cannot be restricted to cut off accumulations, or penalties effeiring thereto, seeing utile per inutile non vitiatur. This point was not determined, in respect it was alleged, That the appriser had also right from the executor; which the Lords ordained to be produced: but it was found in this cause, that,—albeit where executors pursue, or are pursued, the debtor or executor must have a decreet for their warrant, whereof the obtainer will get no expenses,—yet, if the debtor do not pay after the decreet, but suffer the creditor to adjudge for his money, then there will be no restriction as to accumulations or penalties, but the whole penalties will be due. Vide No. 271, [1ord Harcus and Milnes against Lord Pitsligo, February 1682;] No. 303, [1ord Pitsligo against the Lord Hercarse and Provost Miln, February 1684 and March 1685;] and No. 333, [Colvill against William Hally, January 1688.]

Page 70, No. 297.