William Allardes v. James Morison and Andrew Murison
Date: 19 June 1788 Case No. No 22.
A creditor having prevailed in a challenge of his ground of debt, at the instance of a third party, who was, however, found not liable in expenses, entitled to recur against the debtor upon the stipulated penalty for payment of such expenses.
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Mr Allardes lent to William Bogie a sum of money, for which, with annualrent and a liquidated penalty, the latter granted an heritable bond over a subject, in which he stood infeft as proprietor, equally with two other persons, James Morison and Andrew Murison; and on the bond infeftment followed.
This right was challenged by Morison and Murison, in an action of reduction*; but sustained after considerable litigation; though it was found, that no expenses were due by the pursuers.
Allardes afterwards brought a process of adjudication upon the bond, in which Morison and Murison appeared; and making offer to pay the principal sum and annualrents, while they denied that any part of the penalty could be exacted, objected to the passing of the adjudication; and
Pleaded; An adjudication is unnecessary when payment of a debt is offered to the full legal amount. Conventional penalties are only exigible as a recompence for the loss of annualrent, or in order to re-imburse the charges of diligence for recovery of the debt; but by no means on account of the expenses of any action which may take place with respect to it; Fac. Col. 23d December 1757, Allan contra Young and Millar, No 19. p. 10047. Wherever such expenses are due, it is so found; and thus they are repaid without the aid of the stipulated penalty. In the present case, any demand of expenses, under
* See 8th March 1787, No 11. p. 8335., voce Litigious.
the same of penalty seems be even absurd; it having been expressly found that ‘expenses were not due.’
Answered; The pursuer was entitled to have his heritable bond guaranteed to him; and for this end the expenses in question were laid out. He has therefore the same claim to an adjudication for these as for the expense of executorial diligence both the and other being necessary for rendering his security effectual and recovering the dept. It is true Morison and Murison have been found not liable to reimburse the pursuer; but that does not affect the obligation which lies upon Bogie.
The Lord Ordinary reported the cause; when
The Court found, that the pursuer was entitled to an adjudication in security of the penalty in the bond.
Reporter, Lord Hailes.Act. G. FergusonAlt. C. Hay.Clerk, Gordon.
Fol. Dic. v. 4. p. 55. Foc. Col. No 23. p. 39.
