Scottish Court of Session Decisions

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

Ross of Calrossie, and other postponed Creditors of Ross of Easterfearn
v.
Balnagowan and Davidson

Date: 6 November 1747
Case No. No 27.

An adjudication not annulled, but restricted to a security, notwithstanding of an inexcuseable pluris petitio.

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In the ranking of the creditors of Easterfearn, it was objected to an adjudication, produced for Balnagowan and John Davidson, assignees thereto, from Ross of Ankerville, That the same was void and null, as proceeding upon a decree of constitution, at the instance of Ankerville, for a sum much beyond what was due; and that not obtained through oversight or mistake, but pessima fide, on the part of Ankerville; in so far as, after Easterfearn had alleged, upon a fitted account between Ankerville and him, as in Ankerville's own hand, restricting the sum of L. 9540 pursued for, to the small balance of L. 1284 Scots; and that the matter had thereafter been allowed to lie over, till Easterfearn's affairs had gone into such disorder, that no appearance was made for him in any process; Ankerville at a side-bar calling, represented by his procurator, that he had produced in the clerk's hands the fitted account founded on, which noways proved the defender's allegeance; and none appearing for the defender, the Ordinary decerned for the L. 9540 libelled; although that very account then produced, restricted the balance due, to the sum of L. 1284.

Had the practice of the Court in former cases, been followed in this, the objection must have been sustained; for, hitherto the Lords have been in use to consider adjudications, to be of their nature indivisible, and therefore stricto jure, to be either valid or null in totum; but nevertheless, in respect of long practice, to sustain them ex equitate, as a security for what was truly due; especially where the question was only between the creditor and the debtor; but rarely in a competition of creditors; and only where the debt was small, and proceeded from some innocent mistake. But wherever the defect appeared to proceed from design, the Lords have been in use, in a competition of creditors, to set aside the diligence in totum; in so much, that where an adjudication proceeded upon different debts, contained in one accumulation, because of a gross error of pluris petitio with respect to one of the debts, the adjudication was found void in totum, even as to that debt, against which there lay no exception; 1st December 1738, Baird of Cowdam against the other creditors of Catrine, (No 19. h. t.)

But in this case, a very different reasoning prevailed, viz. That although when apprisings were in use, wherein there was a value put upon the lands by the messenger, apprisings behoved either to subsist or to fall in totum; because, where there was a pluris petitio, there was no ascertaining, without a new jury, how much or what part of the lands apprised, should be retained by the appriser, to satisfy what might be truly due; and therefore, it was necessary that the lands should be of new apprised. Yet, as in adjudications there is no value put upon the lands, but great estates are daily adjudged for trifling sums, there was no thing in law, or the nature of the thing, why, notwithstanding of a pluris petitio, the adjudication should not subsist for what is truly due; as well as an infeftment of annualrent, granted for two debts, would subsist, for the one debt truly due, although it should afterwards appear, that the other debt had been paid, before the annualrent-right was granted.

And, upon this reasoning, the adjudication was in this case sustained, as a security for the L. 1284, contained in the fitted account; though hardly can a case occur, where less can be said to excuse the pluris petitio.

Fol. Dic. v. 3. p. 5. Kilkerran, (Adjudication.) No 17. p. 17.