Scottish Court of Session Decisions

Subject_1 PENALTY.

William Gordon, Trustee for Katharine and Anne Maitland,
v.
Major Arthur Maitland of Pittrichie

Date: 27 November 1761
Case No. No 20.

Penalty in a bond allowed only to the extent of the expense of diligence used in putting the decree obtained by the creditor in execution.

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Major Maitland having, by decree of the Court of Sesion, affirmed in the House of Peers, been found liable to Katharine and Anne Maitland in the sum of 19,000 merks, and annualrent due thereon, contained in a bond granted to them by their brother Mr Charles Maitland, with a fifth part more of penalty in terms of the said bond; he was charged with horning at the instance of William Gordon their trustee, to make payment of the whole.

The Major paid the principal sum and annualrents; but suspended the charge quoad the penalty; and insisted, That the charger could recover no more of it than would defray the expense of diligence used upon the decree.

Answered for the charger; 1mo, His constituents laid out a more considerable sum than the whole penalty charged for in obtaining a decree of the Court for payment of their provisions; and as in strict law, the penalty in a bond is as much due as either principal or interest, so equity can never interpose futher than to restrict if to the neat expenses disbursed, and the damage sustained by the creditor through want of his money at the stipulated term of payment 2do, As the word of the decree are express, finding the suspender liable in the sums contained in the bond of provision, with a fifth part more than the said respective sum of penalty, in terms of the said bond; and as this decree was simply affirmed, the suspender must be liable for the whole penalty, unless he can show, that the Court of Session has a power to review the judgment of the House of Peers; and the only remedy now left to him is to apply to that most honourable Court, and pray for an explanation of their judgment in this particular, or for a special reference to the Court of Session to reconsider that part of their interlocutor by which they decerned against him for the penalty.

Replied; The judgment of the House of Peers could not make the decree of the Court of Session broader than it was originally; and though it is common for the Court of Session, in cases of this nature, to decern for the penalties as well as the other sums contained in the deeds to which they are adjected; yet it has always been understood, that the creditor could recover no more out of these penalties than would answer the expenses laid out by him in carrying the decreet into execution; and so it was expressly found in the case of Young contra Allan, anno 1757, No 9. p. 10047.

“The Lords found the letters orderly proceeded quoad the expense of diligence incurred since the decree of the Court of Session; but suspended the letters quoad the remainder of the penalty.”

For the Charger, Wight, Ferguson. Alt. Burnet. Clerk, Justice. Fol. Dic. v. 4. p. 56. Fac. Col. No 66. p. 150.