Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
William Innes, Writer to the Signet, v. The Earl of Breadalbane
Date: 25 March 1707 Case No. No 14.
In a declarator of expiry of the legal; Objected, that the accumulation had been made at a term prior to the date of the adjudication. - Found not to be a nullity; annualrent not being charged on the accumulated sum. This, therefore, left to the operation of the law, became due only from the date of the adjudication.
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William Innes, writer to the signet, having pursued a declarator of expiration of the legal, of an adjudication, upon the estate of Breadalbane, to which he had right: It was objected for the Earl of Breadalbane, That the legal could not expire; because the adjudication was null; at least, could only subsist as a security for principal sum and annualrent, in the bond it was led upon, and for the necessary charges:—In regard the annualrent and penalty were accumulated in a principal sum, at a term preceding the date of the adjudication, and made to bear annualrent from that term; whereas, annualrent of the accumulated sum, should only run from the date of the decreet, by virtue whereof it bears annualrent.
Answered for the pursuer: The decreet of adjudication is dated the 11th of March, and the annualrent and penalties are only accumulated at the Candlemas preceding, which is but a short space; and it has been the custom, till of late, to accumulate at a term preceding the decreet. 2do, Though the sums are accumulated at the term of Candlemas, it doth not follow that the accumulated sum was to bear annualrent from that term; since the decreet mentions not when the annualrent should commence, nor decerns for any annualrents at all, but leaves them in indefinite terms to the regulation of law; which imports annualrent only from the date of the adjudication.
Replied for the defender: The smallness of the interval betwixt the preceding term, and the date of the decreet, is not the question, but the legality and method of proceeding: And though, perhaps, several adjudications be led the same way, that is but corruptela, non consuetudo; and communis error non facit jus. And the accumulating of annualrents and penalties, from a term preceding the adjudication, was found sufficient to restrict the adjudger, in the case betwixt the Children of Preston, against Mr Thomas Lermont; because, till the date of the adjudication, there was no warrant for the accumulation, and the exacting annualrent of annualrent without law, is usury. 2do, It is evident, from the decreet, That accumulating at a preceding term could be for no other end, than to make these accumulations bear annualrent.
Duplied for the pursuer: The accumulating at the preceding term, was for the adjudger's own security, and to free him from the hazard of adjudging for more than was due; and from the trouble of counting broken terms, in which he might easily err. As to the decision in the case of the Creditors of Preston, it does not meet; for there the sums were accumulated a considerable time before the adjudication, and decerned to bear annualrent from the date of the accumulation, which cannot be pretended in this case. And it was decided in the cases of the Lady Innerleith against the Laird of Cockburn; (No 13. h. t.) and of the Seamen of Prestonpans against Doctor Smelholm; That, where annualrents and penalties, accumulated at a term preceding the decreet of adjudication, are not decerned to bear annualrent from the date of the accumulation, that is no nullity or ground for restricting the decreet.
The Lords repelled the nullity, proponed against the adjudication, and found it no ground of restriction; for they thought, that since the decreet mentioned not from what time the accumulated sum should bear annualrent, the term of its commencement was left to the regulation of law; which imports annualrent only from the date of the adjudication.
