Scottish Court of Session Decisions

By minute of tack in October, 1820, John Bruce of Sumburgh, let to John Hughson, merchant in Lerwick, for five years from Martinmas, 1820, “all and whole his lands and estate in the united parishes of Dunrossness, &c. but with and under the conditions and reservations after specified, with full power to Hughson to call for, uplift, demand, and receive, and, if need be, to sue for the whole gross land-rent for which the tenants on the said estate shall be assessed in, and become bound to pay, conform to a rental thereof, to be made and delivered to the said John Hughson, with all convenient despatch, and with power also to the said John Hugh-son and his foresaids, to levy and collect the rents of the seating in the kirk of Dunrossness, effeiring to the said estate, &c.” Other privileges were granted to Hughson, to exact certain sums from the heads of families, “in name of fishing profits;” to be sole purchaser of fish and oil from the tenants. Hughson bound himself to pay “yearly, the whole gross land rent payable by the tenants from the said estate, as the same shall be contained in a rental thereof, to be made and subscribed by the parties, as relative hereto: Provided always, that the tenants on the lands hereby let, acquiesce in, and become bound, to pay the respective rents which shall be so specified in the said rental, and no otherwise: And, farther, the said John Hughson binds and obliges himself and his foresaids also to pay to the said John Bruce and his above written, the sum of £100 sterling, in name and lien of fishing profits expected to be acquired from the said estate, in consequence of the obligations on the tenants thereon, as herein before specified, and together also with the proportion of rents derived from the seating in the kirk of Dunrossness.” The term of payment was Martinmas, and the whole annual sum payable by Hughhson was about £652. Hughson paid the first year's rent; but, in 1823, he had fallen into arrear to the extent of £434, and Bruce required security, both as to that arrear, and the future rents. Hughson agreed to grant a heritable bond over some houses in Lerwick, to the amount of £1500; and, after the parties had fitted accounts, in which Hughson obtained credit for the £1500, under deduction of the £434, the bond was executed, and Bruce was infeft. No part of the balance arising on these accounts was paid by Bruce to Hughson. On the contrary, Bruce alleged it to have been the agreement, that each future year's arrear of rent should be stated as a farther advance by him under the bond. The parties accordingly fitted accounts annually, in which, while Hughson was credited with the balance which arose, after deducting the rents subsequently falling due, and interest thereon, he was debited with £1500, and interest thereon.

Angus, a creditor of Hughson, led a first adjudication against Hughhson's estate. On 22d May, 1827, Bruce led an adjudication on his bond and sasine; and he took decree for the accumulated sum of £1989, including interest from Martinmas 1824 on the sum of £1500, and £300 of penalty. The decree was not duly recorded in the register of abbreviates of adjudications within sixty days of its date, but only, by warrant of the Court, about ten months afterwards.

In June 1831, Hughson executed a trust-deed for behoof of his creditors (to which Bruce acceded), and by which he conveyed the subjects covered by Bruce's heritable bond. The trustee sold the subjects, and raised a multiplepoinding for distributing the price, as there was a shortcoming; and, after the action was raised, he paid £1319 to Bruce to account of his bond. Bruce claimed the balance in virtue of his bond, sasine, and adjudication.

Charles Spence, S.S.C., as common agent, objected, on the part of the other creditors, to the payment already made as irregular, in so far as it exceeded £434, the debt actually due at the date of the bond; and contended—1. That the bond gave no preferable veal right except to the extent of £434, the rest of the £1500 having been a future, contingent, and indefinite debt, at the date of the bond and sasine. Bruce was not even liable to advance the full sum at the pleasure of Hughson, but it was merely to be made up, from year to year, of such arrears as should be incurred by Hughson; and the bond was void by 1696, c. 5. 2. The adjudication being rested on that bond, was inept. Besides, it contained a pluris petitio; and the abbreviate was not duly recorded.

Bruce answered—1. That it was not necessary to make an instant advance of cash to the debtor to the full extent of the heritable bond, in order to save it from the act 1696, c. 5. But in fact, full value was given, for Hughson was, in consideration of the bond, allowed to remain in the possession of the subjects, and he had full power to draw the subrents so that the debt was not future in its contraction, though the day of payment had not then come. At least, the bond should be sustained as to the rents of the term then current, as well as in regard to the arrears past due. 2. The adjudication not having been led till after the whole sun was due, gave a preferable right to the claimant; and as the Court had granted warrant to record in the register of abbreviates, no objection could be made as to the non-recording within 60 days.

The Lord Ordinary “found the heritable bond of 18th August, 1823, mentioned in the record, is ineffectual, except to the extent of the sum due and payable at its date, in respect it was granted for a future, contingent, and indefinite debt: Found the adjudication of 22d May, 1827, ineffectual, in respect it was led exclusively on the bond, the debt alleged to be due under it not being duly constituted, and the abbreviate not being duly recorded; and before farther answer, remitted to the common agent to ascertain the sum due at the date of the bond, and to report.”

Bruce reclaimed; but the Court, without calling on the respondent's counsel, adhered.