Subject_1 ADJUDICATION and APPRISING. Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.
Dalrymple v. Lyon
Date: 14 January 1752 Case No. No 15.
In accounting for intromissions, in consequence of an adjudication on a bond, which contained a penalty exceeding the fifth part of the principal sum, the excess was disallowed.
In what case an adjudger accounts by a rental, and from what period his intromission imputes.
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John Lyon and Robert Dalrymple having severally obtained adjudications within year and day of each other, of certain houses in Port-Glasgow, against their debtors Alexander Watsons, elder and younger; Lyon obtained a decree of mails and duties, and thereupon entered to the possession of the whole subjects contained in his adjudication.
When Robert Dalrymple understood him to be paid by his intromissions, he brought a process of reduction and declarator of extinction against Lyon, wherein the following questions inter alia occurred.
It was objected by the pursuer to one of the grounds of the defender's adjudication, being a bond for 200 merks, That it contained a penalty of L. 40 Scots, and that the same ought to be restricted to a fifth part of the principal sum.
Answered for the defender, That though the Lords may in some cases have restricted exorbitant penalties to a fifth part, yet that is not on account of any law that penalties shall not exceed a fifth part, but from an equitable consideration of the interest of parties, that the penalty may not exceed the necessary expence in recovering payment; and as for that reason, where the sum is great, it might not be wrong, even to restrict the penalty to a less sum, so where the sum is small, as in this case, and that the penalty of a fifth part cannot defray the necessary expence, there is no equity in restricting the penalty, which has, by consent of parties, been agreed on.
The Ordinary ‘restricted the penalty to a fifth part of the principal sum, and found, That L. 13: 6: 8 Scots, in which it execeeded the said fifth part, was to be deduced from the accumulate sum in the adjudication.’ And the Lords ‘adhered.’
A more material question was determined concerning the method of the defender's accounting for the rents, Whether he was to account by a rental, and from what time he was to be charged with the year's rent?
With respect to which the Ordinary ‘found, That the defender having entered to the total possession of the subjects adjudged, upon a decree of mails and duties, he was not only accountable by a rental, but was obliged to have done exact diligence for recovering the rents from the tenants, and to have let the houses of such of them as removed; and refused to sustain the arrears of rent as an article of discharge, in respect, he did not instruct his having done diligence against the tenants.’ And as to the period from which he is to account, ‘found, That he is to be accountable for the year's rent at the next term after the whole year's rent was due; and therefore must account for the year's rent due at the Whitsunday, at the Martinmas following, and so on in a progressive way; and the Lords ‘adhered.’
N. B. Although the entering to possess is taken into the interlocutor, as on a decree of mails and duties, that was, because so the case happened in fact to be. But the case will be the same, where the adjudger takes up the total possession of the subject adjudged, though without a decree of mails and duties. Nor is it necessary in order to make such adjudger accountable by a rental, to say that he has debarred another; it being enough that he has debarred the debtor. True, if, the debtor has had a promiscuous possession, no other Creditor can complain of that, unless he has been debarred; but if the common debtor has not had a promiscuous possession, the adjudger in the total possession must account by a rental, even to the debtor himself.
