BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robert Rutherford v William and Thomas Bells, &c. [1769] Hailes 287 (7 March 1769) URL: http://www.bailii.org/scot/cases/ScotCS/1769/Hailes010287-0126.html Cite as: [1769] Hailes 287 |
||
[New search] [Printable PDF version] [Help]
[1769] Hailes 287
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ADJUDICATION.
Subject_3 An adjudication sustained as a security, notwithstanding a pluris petitio.
Date: Robert Rutherford
v.
William and Thomas Bells, &c
7 March 1769 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IV. 173; Dictionary, 117.]
Auchinleck. There are three separate accumulations, but the error is only in one. I would restrict as to the heritable bond: every thing else is regular enough.
Pitfour. It is averred that the only intromissions, not allowed in accounting, were after the summons. I doubt as to cutting down all adjudications in totum, on that account.
Gardenston. When a creditor takes a rigorous decreet of adjudication, he must beware and not wilfully demand more than is due. Here there is evidence of a recent payment; and that this payment was after the summons raised, is so much the worse.
Kaimes. The case here is with a debtor, not with competing creditors. Where there is a malicious pluris petitio, the Court may go far in way of punishment. The circumstances of this case show that there was no intention of a wilful pluris petitio. I would, however, take away all accumulations.
President. The interlocutor is rigorous: there was no intention to deceive. The adjudication must subsist as a security for principal sum and annualrents, from the date of the adjudication.
On the 17th March 1769, “the Lords found that the adjudication quarrelled must subsist as a security for principal sum and interest, from the date of the adjudication;” altering Lord Gardenston's interlocutor.
Act. W. Nairne. Alt. J. Swinton, jun. Diss. Gardenston, Kennet.
The electronic version of the text was provided by the Scottish Council of Law Reporting
