Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.

The Creditors of Ross of Lethinty,
v.
Elizabeth Gellie, Relict, and John Hall, Son to the deceased John Hall, Merchant in Aberdeen

Date: 19 June 1711
Case No. No 17.

A liferentrix of a bond received payment of a small part of the penalty. An adjudication, at the instance of the fiar, found, notwithstanding good, even for the whole penalty.

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In the ranking of the creditors of Lethinty, Mrs Hall and her son founded on an adjudication, upon a bond granted by Ross of Lethinty, and cautioners; payable to the deceased John Hall, and Elizabeth Gellie his spouse, the longest liver of them two, for Elizabeth Gellie's liferent use allenarly; and, failing of them by decease, to John Hall their eldest son, with 2000 merks of liquidate expences, in case of failzie.

Alleged for the other creditors, The said adjudication could only subsist as a security for principal sum and annualrents, and not as to the accumulate penalty; because, the whole 2000 merks of penalty is adjudged for, and yet L. 23 Scots thereof was paid to Elizabeth Gellie, the liferentrix, conform to her receipt produced.

Answered for John Hall, Penalties in bonds are adjected for the failing in payment of the principal sum; and it is only in infeftments of annualrent that termly failzies are pactioned, in case of the not punctual payment of annualrents. For, by common custom, the penalty in a bond doth only decrease by partial payment of the principal sum, and here the whole principal is still resting. So that if any part of the 2000 merks of penalty was paid to Elizabeth Gellie, it was indebite solutum, and cannot be obtruded to John Hall the fiar, as a nullity in the adjudication.

The Lords repelled the nullity, and sustained the adjudication as good, even for the penalty.

Fol. Dic. v. 1. p. 8. Forbes, p. 509.