Whether the whole penalty can be sought where part of the debt is paid?
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The Lords advised the process betwixt the Earl of Balcarras, as assignee constituted by Mr Robert Learmont of Balcomie, (contrary to that title of law, ne quis in potentiorem titulos suos transferat,) and Mr William Gordon, Advocate, who, to balance it, had assigned to the Duke of Gordon a year ago; and who founded on an expired comprising of the lands of Balcomie, mentioned 12th January 1686. The reason of reduction was, that, though the apprising defaulked a part of the sum as paid, yet it was led for the hail penalty, which it should also have deducted proportionally. Answered, Pæna est jus indivisibile, as Calvin in his Lexicon, voce Poena, affirms; so that how long any part of the principal sum is due, the hail penalty in rigore is exigible. Yet Durie, 22d February 1639, Johnston, No 9. p. 10037. observes the Lords divided the penalty. Before answer here, the Lords declared they would call for some of the oldest Writers to the Signet, who had as Clerks led apprisings, and would advise what had been the custom: And they all, generally, (except Mr Thomas Gordon,) resolved, that, in such a case, the penalty should have been restricted; whereon the Lords reduced the comprising quoad the legal, and found it only a security for the sums therein contained, and no further, which was all Balcomie was seeking.
Fol. Dic. v. 2. p. 55. Fountainhall, v. 1. p. 515.
