Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.

Lord Camelford's Trustees
v.
Maxwell of Dalswinton

Date: 28 July 1789
Case No. No 17.

What an articulate adjudition.

The effect of pluris petitio.

20th July 1787.

28th July 1789.

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Lady Camelford's portion of L. 40,000, was vested in trustees, who had power to lend the money on mortgage.

For L. 11,000 of this money, Hugh Maxwell, as commissioner for Major William Maxwell, his brother, granted an heritable bond over the estate of Dalswinton.

L. 3000 of the principal sum having been paid, upon assignation to the bond to that extent, an adjudication was led for L. 8000, the balance of principal sum, with interest and penalty, libelling in the following terms:

“There now only remains due to the said John Sargent and Henry Dagge, (the trustees) in virtue of the said heritable bond, a principal sum of L.8000, with the interest of the whole L. 11,000, from the date of the said heritable bond, to the date of the said assignation; deducting only L. 2112: 15: 14, paid at different times, to account of said interest; and whole interest of the said balance of L. 8000, from and after the date of the said assignation, during the not-payment: And albeit the foresaid principal sum of L. 8000, and annualrents, be yet resting and owing, and unpaid; and that the said John Sargent and Henry Dagge, have oft and divers times, desired and required the said Major William Maxwell, to make payment to them of the same; yet he not only refuses so to do; but also will not secure them thereanent; wherefore, &c. such parts and portions of the lands, and others, after-specified, pertaining, &c. ought and should be decerned and declared, to pertain and belong to the said John Sargent and Henry Dagge, their heirs and assignees, as will be worth and will satisfy the said John Sargent and Henry Dagge, of the sums of money, principal and interest, before specified; and a fifth part more, in respect they will thereby want the use of their money, and be obliged to take land for the same; and that over and above the composition to the superior and expences of infeftment; and probation ought and should be led anent the rental and value of the lands so to be adjudged, in manner specified in said act of Parliament. As also the said Major William Maxwell, ought and should be decerned, by decreet foresaid, to exhibit and produce before the said Lords, the whole writs and evidents, &c.; and in case the right be good, to purge, &c. or otherwise, all and singular the lands, and others, after-specified, pertaining heritably, or otherwise, to the said defender, his predecessors and authors, viz. all and whole, &c. ought and should be adjudged from the said Major William Maxwell, and all others having or pretending right thereto, and decerned and ordained to pertain and belong to the said John Sargent and Henry Dagge, and their foresaids, heritably, and in payment and satisfaction to them, of the foresaid sums of money, principal and annualrents, and liquidate expences, respectively before-written, as the same shall extend and be accumulated at the date of the decree of adjudication to follow hereon; and of the annualrents of the said extended accumulated sums, from the date of the said decreet, during the not-redemption thereof; and that over and above the composition to the superiors, and expences of infeftment to follow hereon.”

The interlocutor of the Lord Ordinary was:

“Adjudges, decerns, and declares, in terms of the libel.”

The decree was extracted in the following terms:

“Adjudged and hereby adjudge (the lands, &c.)–decern and declare the same to pertain and belong to the said John Sargent and Henry Dagge (the trustees), and their foresaids, heritably, in payment and satisfaction to them, of the respective sums of money, principal, annualrents, and liquidate expences before-specified, contained in, and arising due upon the heritable bond, and bond of corroboration thereof before-mentioned, libelled on; extending, in hail, when separately accumulated at the date hereof, to the respective sums following, viz. the interest of L. 11,000, being the original principal sum contained in the said heritable bond, granted to the pursuers by the said Hugh Maxwell, from the 21st June 1774, the date thereof, to the 12th October 1780, the date of the posterior assignation to L. 3000 of the said principal sum, as before-specified, (after deducting from said interest, L. 2112: 15: 4, paid at different times to account thereof,) to the sum of L. 1357 Sterling money, salvo justo calculo.––Item, The foresaid sum of L. 8000 Sterling still remaining due, of the said original principal sum of L. 11,000, money foresaid, after deducting the said L. 3000, assigned by the pursuer in manner foresaid. Item, The interest of the said remaining principal sum of L. 8000, from and since the said 12th October 1780, the date of the said assignation; extending the said interest, at the date hereof, to the sum of L. 690 Sterling money, salvo justo calculo. Item, The sum of L. 1600 Sterling, as a proportional part, effeiring to the said remaining principal sum of the liquidate penalty, contained in, and due by the foresaid heritable bond, and bond of corroboration; and incurred through failzie: And in payment and satisfaction of annualrent of the said extended accumulated and other sums, from the date hereof, during the not-redemption thereof; and that over and above the composition to superiors, and expences of infeftment to follow hereon.”

Lord Camelford's trustees brought on a sale of the estate, and ranking of the creditors.

Major Maxwell objected, in the ranking against the adjudication led by the trustees, That it ought either to be set aside in toto, or at least restricted to a security for the principal sum and interest, on account of pluris petitio.

The Lord Ordinary found, That the trustees had adjudged for a sum of interest more than was due; and for another sum of interest which had been paid to them; and ordained the parties to prepare informations, to be reported to the court, upon the effect of these two instances of pluris petitio.

It was pleaded for the trustees, That the adjudication was articulate, and, consequently, that the instances of pluris petitio, ought only to affect the adjudication with regard to those articles to which they were applicable.

It was pleaded for Major Maxwell, That although it were to be admitted, that where an adjudication contains separate accumulated sums, arising from different debts unconnected with each other, it should be considered in the same light as if each particular debt had been made the subject of a separate process of adjudication; and that, of course, in such a case, a pluris petitio, ought only to affect that particular accumulated sum which was overcharged; yet the rule of law ought to be very different, when all the accumulated sums, though kept separate, arose out of one and the same debt. The trustees have adjudged the estate for more than was due to them, upon the ground of debt on which their adjudication proceeded; this, in strict law, ought to have occasioned the adjudication to be set aside in toto. The adjudication, though particular in its arrangement, is in reality but one adjudication upon one ground of debt; of course, therefore, the pluris petitio ought, at least, to be allowed its usual equitable effect, of occasioning the adjudication to be restricted to a security for the principal sum, and interest, or for the principal sum, interest, and necessary expences accumulated at the date of the adjudication.

The following was the interlocutor of the court.

“Upon report of Lord Alva, and having advised the mutual informations for the parties, the Lords find, That the two instances of pluris petitio, being L. 36: 3: 3, and L. 24: 2: 2, can only affect the accumulate sum in which they are included, being L. 1357, as the balance of annualrents claimed at the date of the decreet of adjudication: Find, they must be deducted from that accumulate sum and that the trustees of Lord Camelford are to be ranked for the balance thereof, and for the other accumulate sums of L. 8000, L. 690, and L. 1600 with interest upon the whole from the date of the decreet of adjudication; and remit to the Lord Ordinary to proceed accordingly.”

Major Maxwell offered a reclaiming petition, which was answered by the trustees; upon advising which, the Lords found, “That the effect of the two instances of pluris petitio, entitles the petitioner not only to have deduction from the accumulate sum of interest, but also to cut off the interest claimed upon the balance of that accumulate sum from the date of the decreet of adjudication, down to the term from which the price of the estate now sold bears interest, and refused the petition quoad ultra; and remitted to the Lord Ordinary to proceed accordingly.”

It appears that in this case, the separation of the articles in the decree, was the operation of the extractor only, not the act of the judge; in the same manner as in the case of Landale against Carmichael. But the distinction had not at that time been thought of.

Almost all the cases recorded in this Dictionary relative to pluris petitio, under the division ‘Of the Debt which is the Foundation of Diligence,’ were quoted in the argument.

Major Maxwell had likewise raised an action of reduction of the bond, on the head of usury; because one of Lord Camelford's trustees, viz. Dagge an attorney, had taken a large premium for agreeing to the loan; but the Court held, that Lord Camelford not having been himself accessory, could not be affected by this illegal act of his trustee. (See Usury.)

Lord Ordinary, Alva. For the Trustees, Blair, Abercromby, Wolfe Murray. Geo. Robertson, W. S. Agent. For Major Maxwell, Wight, H. Erskine, Dalzell. John Syme, W. S.Agent.

*** The following case likewise regards the effect of pluris petitio.