A creditor by heritable bond, though infeft, can claim the penalty to no greater extent than a personal creditor.
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In the ranking of the creditors of Campbell and Company, Mr Macadam, preferable creditor in virtue of an heritable bond, followed with infeftment, claimed to be ranked for the whole of the penalty therein contained. He had likewise deduced an adjudication on the bond.
Pleaded for Mr Macadam; By the infeftment on the bond, the same security is given for the penalty as for the principal sum and annualrents; and therefore it is to be fully exacted; which is an equitable claim, seeing it will do no more than compensate the loss arising to this creditor from the long delayed payments of interest.
Answered; In the particular case of adjudication, the law allows creditors to rank for the full accumulate sums, including penalties. But heritable bonds are in no other situation than personal, in which the penalty is restricted to the expense actually laid out by the creditor in recovering his money. For the penalties in his adjudication, Mr Macadam may be ranked pari passu with the other creditors.
The Lord Ordinary found, That Mr Macadam could only be ranked for his principal sum and annualrent, and for the penalty to the extent of the expenses incurred; reserving his claim upon his adjudication. And
The Lords adhered to the interlocutor of the Lord Ordinary.
Lord Ordinary, Alva.For Mr Macadam, C. Brown.Alt. Blair.Clerk, Robertson.
Fol. Dic v. 4. p. 56. Fac. Col. No 344. p. 532.
