Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ADJUDICATION.
Subject_3 An adjudication sustained as a security, notwithstanding a pluris petitio.

Robert Rutherford
v.
William and Thomas Bells, &c

Date: 7 March 1769

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[Faculty Collection, IV. 173; Dictionary, 117.]

Auchinleck. There are three separate accumulations, but the error is only in one. I would restrict as to the heritable bond: every thing else is regular enough.

Pitfour. It is averred that the only intromissions, not allowed in accounting, were after the summons. I doubt as to cutting down all adjudications in totum, on that account.

Gardenston. When a creditor takes a rigorous decreet of adjudication, he must beware and not wilfully demand more than is due. Here there is evidence of a recent payment; and that this payment was after the summons raised, is so much the worse.

Kaimes. The case here is with a debtor, not with competing creditors. Where there is a malicious pluris petitio, the Court may go far in way of punishment. The circumstances of this case show that there was no intention of a wilful pluris petitio. I would, however, take away all accumulations.

President. The interlocutor is rigorous: there was no intention to deceive. The adjudication must subsist as a security for principal sum and annualrents, from the date of the adjudication.

On the 17th March 1769, “the Lords found that the adjudication quarrelled must subsist as a security for principal sum and interest, from the date of the adjudication;” altering Lord Gardenston's interlocutor.

Act. W. Nairne. Alt. J. Swinton, jun.

Diss. Gardenston, Kennet.