Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.

Andrew Macwhinnie, Common Agent in the Ranking of the Creditors of Alexander Hooks
v.
Alexander Burton

Date: 4 February 1796
Case No. No 36.

A pluris petitio, proceeding from culpable negligence, found to void an adjudication in toto.

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Alexander Hooks became bankrupt in 1782, when his personal estate was sequestrated.

In 1783, Alexander Burton and Nathaniel Agnew paid a debt, as cautioners for him, amounting to L. 342:10:11.

By receipt, bearing date 20th April 1784, Burton acknowledged his having received L. 82:15:6 from John Hathorn, factor on Hooks' sequestrated estate, as a dividend on this debt; and, in March 1784, Burton also received L. 20 further to account of it, from Robert, Murray, a debtor of Hooks. In May 1789, Mr Agnew granted an assignation of his half of the debt, in favour of Burton, on the narrative that Burton had paid him the amount of it.

Burton, thus in right of the whole debt, in 1790, led an adjudication upon it, over lands belonging to Hooks, without deducting the partial payments of L. 82:15:6, and L. 20 which he had previously received.

In a ranking and sale of Hooks' heritable property, which was afterwards brought, the common agent contended, That Burton's adjudication should be set aside in toto, on account of the pluris petitio which it contained, and which he alleged arose in two ways: 1mo, From Burton's not deducting the partial payments he had received before its date; and, 2do, He stated, that Agnew, previous to the date of his assignation in favour of Burton, had compounded his share of the debt with Hathorn, Burton, and certain other persons, whom Hooks had appointed trustees for that very purpose; and that, in fact, part of the L. 82:15:6 paid to Burton by Hathorn, was received by him as in full of Agnew's composition; so that in justice, Mr Burton's adjudication should have been led only for his own half of the debt, deducting the partial payments which he had received on his own account.

Mr Burton, in defence, stated, 1mo, That owing to Hathorn and him having had other transactions together, it happened, that although credit had been given him by Hathorn for the dividend of L. 82:15:6, on 20th April 1784, this circumstance did not come to his knowledge till July 1789, when he immediately wrote to his agent at Edinburgh, to deduct that payment from the sum for which he had directed the adjudication to be led; and, that it was owing to the inadvertency of his man of business, that this had not been done. That his receipt for this dividend, although dated in April 1784, was not, in fact, signed by him for eight years after; it having been antedated by Hathorn, from a desire that it should not appear from his vouchers, that any dividends belonging to Hooks' creditors had remained so long in his hands. That the L. 20 paid by Murray was received by Agnew, and not by him; and that its not having been deducted in leading the adjudication, arose from an uncertainty, whether it would be admitted as a good payment by Hooks' other creditors, it having been made after his bankruptcy. 2do, Mr Burton denied that Mr Agnew had accepted a composition for his half of the debt; and although pretty strong circumstances were brought forward by the common agent in proof of his allegation, the Court did not seem to consider it as fully established.

These explanations, it was contended by Mr Burton, evinced, that he had never any intention of concealing the partial payments which he had received; and that therefore, agreeably to the present practice of the Court, the adjudication should at least be sustained, as a security for the principal sum truly due, interest and necessary expences accumulated, as at the date of the decree; Kilkerran', No 17. Adjudication, (No 27. h. t.); 13th January 1759, Creditors of Dunjop, (No 29. h. t.); 7th March 1769, Rutherfoord, (No 31. h. t.)

The Lord Ordinary, ‘in respect the said Alexander Burton has not made it appear, that the pluris petitio in his adjudication was owing to an innocent mistake, therefore, sustained the said objection, as sufficient to reduce his adjudication in totum, leaving him to rank as a personal creditor for what may be found due to him.

On advising a reclaiming petition for Burton, with answers, &c. it was Observed on the Bench: A general adjudication is no doubt more of the nature of a pignus præctorium, than of a sale; yet, as a decree of expiry of the legal, although in absence, may convert it into a right of property, it must not be laid down as a general rule, that no pluris petitio shall have the effect of annulling an adjudication. In the present instance, the conduct of Mr Burton was slovenly, and even culpable.

The Court ‘adhered,’ and found Mr Burton liable in the expence of the answers, &c.

Lord Ordinary, Swinton. For Common Agent, D. Cathcart. Alt. Hay. Clerk, Menzies. Fac. Col. No 200. p. 480.