Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Gordon v. Bain of Tulloch
Date: 30 June 1747 Case No. No 26.
A bond for L.500 is assigned. The assigned adjudges for the whole sum, although part of it had been, arrested, previous to his assignation, and although the debtor had counter claims against the cedent. - The adjudication restricted to a security.
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Kenneth Bain of Tulloch, and Roderick Dingwal of Cambuscurry, were bound together in several obligations; and having made a clearance between themselves, and settled the several debts which each was bound to relieve the other of, Tulloch, besides, granted bond to Cambuscurry for L.500 sterling, which he assigned to Sir Robert Munro of Foulis; but, before the assignation, arrestment had been used in the hands of the debtor, at the instance of M'Leod of Cadboll; and, in a multiple-poinding, Cadboll was preferred to the extent of the debt, on which he had arrested.
Tulloch's estate being adjudged, Sir, Robert Monro raised an adjudication to be within year and day; and it being objected to him, that be could take decreet for no more than the surplus of the sum for which Cadboll was preferred: 2do, That the debtor had right of retention until be was relieved of certain debts, in which he was bound for Cambuscurry;—Decreet was pronounced, reserving all exception contra executionem.
It must be observed, that, before the decreet, Sir Robert had purchased the debt on which Cadboll's arrestment proceeded, but did not plead upon it in that process.
John Gordon, merchant in Edinburgh, as disponce from Sir Robert Monro, insisted, in a process of mails and duties, tin the adjudication; and the above defences being proponed and insisted on, as relevant, not only to reduce if to the sum for which it ought to have been pronounced, with penalty effeiring thereto, but to cut down the accumulations altogether; which, being penal, ought not to be incurred, when, by reason of the pluris petitio, the debtor was not bound to pay the whole demand, and was not allowed to make his defences in the adjudication, but these reserved:
The Lord Ordinary refused this demand, and, 28th November, 1746, found a balance due on the adjudication; such as arose on reckoning the interest and penalties on the sums due; in which was included Cadboll's debt, in the person then of the adjudger.
Pleaded, in a reclaiming bill, That no accumulations ought to be allowed, as the debtor was not owing the full demand, and was not allowed to make his defences but the pursuer insisted to take decreet for what he was not bound to pay: Cadboll's arrestment was a good defence; and, though the pursuer had purchased it, yet he made no intimation thereof to the defender nor used that debt as the title of his diligence; and it was allowable to make use of arguments, arising from the strictness of forms to defend, against penal consequences: Nor was it only in point of form, that it was necessary to found upon the transmission, but also in substantial justice; for otherwise, it remained still in the pursuer's power to convey that debt, retaining in his own person the adjudication. 2do, The defender was not bound to pay, till relieved of his engagements for Cambuscurry, which he neither was at pronouncing the decreet, nor as yet: When that was done, he should be ready to pay the balance; but, as this was a good defence for not-payment, he could not be subjected to any penalty.
Answered, When an adjudication was pronounced, reserving contra executionem, and any deduction was afterwards, made from the sum, the consequence ought not to be the striking off the whole penalty and accumulations, but the restricting the adjudication to what it ought to have been pronounced for; that this one was rightly taken for the whole bond, comprehending the arrested sum: For, if that objection had been then to have been considered, it would have been answered, That the arrestment was only an incumbrance on Sir Robert's right, and was then in his person, as it still is; nor could it weigh, that he might have assigned the debt whereon it proceeded, as he had not done it, but pleaded on it now, as he might have done at pronouncing the decreet. 2do, As Tulloch and Cambuscurry were mutually engaged for one another, and their claims of relief pretty near equal, when they adjusted matters between them, besides which the bond pursued on was granted; Tulloch's claims ought not to be set up as a pretence for not paying his liquid bond, when they were compensed by Cambuscurry's upon him. These, it could not be pretended, were cleared at the date of the adjudication, whatever might be the case now, which was a question wherein the Lord Ordinary had pronounced an interlocutur, and which lay before the Court, upon petition and answers.
The question was first put, Whether accumulations should be allowed on the arrested sum? And then, Whether they should, notwithstanding, be allowed on the remainder?
The Lords found, That the adjudication did only subsist as a security for the principal sum, annualrents, and necessary expences.
Act. Lockhart.Alt. H. Home.Clerk, Forbes.
D. Falconer, v. 1. p. 261.
