Subject_1 ADJUDICATION and APPRISING. Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.
The Common Agent in the Ranking and Sale of John Mackinnell's property, v. Thomas Goldie
Date: 9 June 1797 Case No. No 18.
An adjudication led on a decree for a random sum, set aside on account of a pluris petitio.
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John Mackinnell was the managing partner, and kept the books of Carlisle, Mackinnell, and Company. The concern having been unsuccessful, it was dissolved in 1782; but no settlement then took place with Mackinnel, and he died a few years after, leaving both his own affairs, and those of the Company, in disorder.
At his death, he was considerably indebted to the Company; but from the irregular manner in which he had kept the books, it would have required a tedious investigation to have ascertained the amount.
His other creditors having immediately proceeded to adjudge his heritable property, George Macmurdo, the surviving partner of the Company, brought an action of constitution against his representatives, for the random sum of L. 1500, as the amount of the debt which he owed the Company, with interest from the date of the decree, which was obtained in 1789; and afterwards Macmurdo led a general adjudication, in the usual form, for the sum contained in the decree.
The books of the Company having been put into the hands of an accountant, it was ascertained, but not till about fifteen months after the date of the adjudication, that the debt really due by Mackinnell to the Company was L. 396: 3: 4½, with interest from 3d August 1794, besides a claim, not liquidated, to a small amount.
Macmurdo afterwards conveyed his adjudication to Thomas Goldie, who produced it as his interest in a ranking and sale of Mackinnell's property.
The Common Agent contended, That it was null on account of the pluris petitio; 7th March 1794, Macneil's Creditors against Saddler; p. 122. of this Dictionary.
The Lord Ordinary “sustained the objection”.
Goldie, in a reclaiming petition, argued, That the adjudication should be sustained, at least as a security for the principal sum actually due, with interest and necessary expences, especially as the pluris petitio had arisen, not from any fault on the pact of the adjudger, but from the misconduct of the common debtor himself, in not keeping distinct books, which rendered it impossible to ascertain the amount of the debt, in time to enable Mr Macmurdo to come in pari passu with the other creditors. The petitioner further stated the same authorities, and in substance the same general argument with the defenders in the case of Macneil's Creditors against Saddler.
Two of the Judges doubted of the soundness of the judgment in that case. They thought that a general adjudication, as being merely a pignus prætorium, should be sustained as a security for the real amount of the debt, notwithstanding a pluris petitio, however large, if it did not arise from fraud. But the rest of the Court thought the judgment in the case of Macneil right, and that the point was settled by it. In cases, (it was observed) where the creditor cannot ascertain the extent of his claim, the remedy is to lead an adjudication in security, the legal of which never expires.
The Lords refused the petition, without answers.
Lord Ordinary, Glenlee.For the Petitioner, Hay.Clerk, Home.
Fac. Col. No 35. p. 80.
*** See ‘Of the Debt which is the foundation of the Diligence.’
