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(1785) 3 Paton 9
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
[Mor. p. 120.]
No. 3
House of Lords,
Subject_Adjudications — Penalties — Pluris Petitio. —
Circumstances in which held, where the termly penalties due by a bond were included in the accumulated sum of an adjudication, that these formed a pluris petitio; and the adjudication so far objectionable as to reduce it to a security for payment of principal and interest in the bond.
Certain property, which originally belonged to John Porteous, having been adjudged by Sir James Nasmyth, and he having entered into possession in virtue of his adjudication, a judicial sale and ranking of the creditors was then brought. The estate was bought by Sir James Nasmyth, the principal creditor. Sixty years after the date of the adjudication, the heir of Porteous brought a challenge of the title in Samson's name. His chief grounds of challenge consisted in objections to the adjudications which grounded the judicial sale.
It was objected to the adjudication for the accumulated sum of £11,346. 13s. 4d. Scots led upon the debt originally due to Bertram of Nisbet, and assigned to Sir James Nasmyth, that the termly penalty of 100 merks for failure in payment of each half-year's interest contained in the bond, and adjudged for, being equal to one-third of the interest, was exorbitant, and therefore the adjudication ought not to be sustained; and that the other adjudication upon the same debt for £1480 Scots of interest was unnecessary; that interest being included in the first adjudication.
Nov. 20, 1763.
Mar. 20,1784.
June 26,1784.
July 8, 1784.
The Court pronounced this interlocutor:—
“The Lords sustain the objections to the first article in the state of the interests produced in the ranking, being an adjudication at the instance of Sir James Nasmyth against the common debtor, for the accumulated sum of £11,346. 13s.
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4d. Scots, to the effect of striking off from that sum the liquidated penalty and termly failures contained in the bond adjudged for, and find that the adjudication can only subsist as a security for the principal sum contained in the bond and interest due thereon, to be accumulated at the date of the decreet; sustain the objection to the second article in the state, being an adjudication at the instance of Sir James Nasmyth against the common debtor for the accumulated sum of £1480 Scots”.
On reclaiming petition the Court altered the interlocutor reclaimed against, and found “That the adjudication in question can only subsist as a security for the principal sum and interest accumulated at the date of decreet of adjudication, and remit to the Lord Ordinary to proceed accordingly.” The appellant presented another petition, but it was refused; and the case was therefore remitted to the Lord Ordinary to proceed and determine therein.
Against these interlocutors the present appeal was brought.
Pleaded for the Appellant.—1. There is no ground in equity, and therefore it would require very clear grounds in law to deprive the appellant of the moderate penalty in question stipulated in his bond, and adjudged for upwards of sixty years ago; and the appellant judicially offered to show, by calculation, that the very loss he sustained by want of payment of the interest upon the debts due to him by his debtor, is greatly more than the amount of this penalty. The respondent declined the calculation. The creditor, therefore, is not desiring any undue advantage of the debtor, while the latter's heir, at the distance of sixty years, endeavours to take the advantage of legal niceties against him. One purpose and object of the penalty for nonpayment, is to answer the damage and inconvenience of lying out of the money. Another is, to answer the expense of recovering it. The appellant and his predecessor have been at great expense, but if the penalty be cut off these must be lost. 2. In law there was no pluris petitio or charge more than was legally due. The adjudication was taken precisely in terms of the personal obligation in the bond on which it was founded. By that bond the debtor had become bound to pay principal, interest, penalty, and termly penalties to the full extent of the sum adjudged for. Every shilling, therefore, was legally due; and supposing that either part or the whole of the termly penalties could afterwards be restricted by a court of equity, that does not infer any illegal over-charge
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Pleaded for the Respondents.—1. Adjudications, like other diligence, are, in their nature, indivisible. When a creditor seizes the effects or estate of his debtor, by a rigorous process of the law, he must be prepared to show, not only that every step is regular, but that the precise sum demanded is due by law. It is not sufficient for him to say, that a part was indisputably due, and he will hold the diligence as for one part only. An adjudication is, in law, a transfer of the estate of the debtor to the creditor, in satisfaction of the debt mentioned in it;—if that debt was not due, in the strictest and most entire sense, there is no transfer,—the whole proceeding is nought, and the creditor has himself to blame. Upon these principles, which will be found laid down by every authority, any irregularity or overcharge in the adjudication does, in strict law, void it altogether; but the Court of Session, in exercise of its equitable powers, has been in the practice, where the irregularity or overcharge is not gross, to sustain the adjudication challenged, as a security to the creditor for what is due in equity. Sitting as a Court of equity, they will not cut down a just debt on account of informality or mistake, in a process which the creditor has relied on for securing his payment; but neither will they decree payment of penalties, which the creditor has no title to but by law, and in consequence of observing all the forms, and keeping within the bounds of strict law in the process. Accordingly, in the present case, the Court has given the appellant his principal and the interest thereof accumulating, or converting both into a principal at the date of the adjudication, with the legal interest of the sum then accumulated
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After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be affirmed.
Counsel: For Appellant,
Alex. Wight,
Wm. Adam.
For Respondents,
Ilay Campbell,
Ar. Macdonald.