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Leslie of Balnageith, as assignee by Leslie of Middleton, having right to a bond of 6000 merks due by Sir Patrick Ogilvie of Boyne; and my Lord Seafield having got the gift of his escheat and recognition, Balnageith adjudges for this debt; but when he comes to extract his decreet, he finds no penalty liquidated in his bond, but only the general clause 'with annualrent and penalty,' without specifying what the penalty should be; whereupon he supplicates the Lords, representing this has been but an omission of the writer, and that the Lords commonly sustain the fifth or sixth part of the principal sum to be the conventional penalty and liquidate expenses; and therefore craved the Lords would allow the extractor to insert that sum in his adjudication, otherwise he would be a considerable loser, being in all probability to lie long out of his money. The Lords thought the writer of the bond culpable and censurable for so gross an omission; but did not find they had power to supply his defect, and therefore refused the bill.
Fol. Dic. v. 1. p. 498. Fountainhall, v. 2. p. 256.
