Thomas Bairdiner of Cultmill, v. William Drysdale, Tenant there
Date: 27 July 1706 Case No. No 14.
The debtor in an Obligation ad factum præstaædum, under a penalty, without the clause, “by and attour the implement of the premises,” found liable only, in case of non-performance, for the penalty.
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Thomas Bairdiner having acquired the lands of Cultmill by an adjudication against the heritor, did enter into a contract with William Drysdale the tenant, who had married one of the heritor's two daughters and heirs portioners, whereby the said Thomas Bairdiner was obliged to renew the tack for the space of 19 years upon payment of the former tack-duty, and to grant him a discharge of a year's rent then due; and William Drysdale obliged himself to grant a disposition with consent of his wife, of all pretence or claim that she had to the lands, and to cause her sister to do the like betwixt and a certain day, under the penalty of 100 merks in case of failzie. William Drysdale being charged to implement his obligement, he suspended upon this reason, That to procure his sistet-in-law's consent to the disposition, was factum imprestabile, for she would by no means consent; and therefore the charger could only seek damage and interest, which he liquidated in the obligement to 100 merks of penalty; upon payment whereof the suspender is free, seeing the clause, by and attour the implement of the premisses, was not adjected.
Answered for the charger; as the sanction of a law is only to enforce the observation of it, by subjecting transgressors to the penalty; so the adjecting of a penalty to an obligation is only designed as a compulsatory upon the debtor to fulfil, and to render the obligation effectual; the words by and attour implement of the premisses, being only added ordinarily ob majorem cautelam. And if it had been intended that the suspender should be liberated upon payment of the penalty, that would have been exprest, as also that all things done in contemplation of the foresaid obligation should be restored. It is of no moment that the suspender pretends he cannot procure his sister-in-law to consent to the disposition; for he ought to have foreseen that difficulty before his engagement. And persons obliged to consent of third parties, were not liberated from the principal obligation, even where no penalty was adjected, but found liable to fulfil in forma specifica; Purie against Couper, voce Warrandice; Weidderbum against M'Pherson, voce Surrogatum. Far less can it be conceived, how the adjecting of a small penalty, (which is only done for defraying the charges of diligence in, case of not performance) should render it arbitrary to the debtor to perform or not as he pleases; when the principal obligation may be ten times more valuable than the penalty. Vide Stair, Instit. L. 1. T. 17. § 20. in fin.
Replied for the suspender; The cited decisions do no meet the case in hand, where the penalty is not conceived by and attour performance; but adjected in place of fulfilling the obligement.
The Lords found the letters orderly proceeded for the penalty; but suspended them as to the principal obligation.
