Scottish Court of Session Decisions

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

Robert Rutherfoord
v.
William and Thomas Bells, Children of William Bell, and Elizabeth and John Murrays, his Grand-Children

Date: 7 March 1769
Case No. No 31.

An adjudication, sustained as a security, notwithstanding of a pluris petitio, which admitted of some excuse.

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William Bell, wine-cooper in Leith, was creditor to Thomas Rutherfoord, baker in Edinburgh, his father-in-law, in L. 314: 15: 10d. Sterling.

He conveyed the debt to Elizabeth Rutherfoord his spouse, in liferent, and as trustee for behoof their children, with a power of division, as she should think fit.

In leading an adjudication cognitionis causa, against Robert Rutherfoord, heir of Thomas, Elizabeth Rutherfoord neglected to deduct the rents of certain tenements, which she had possessed for some time, in virtue of an heritable bond of corroboration, granted in security of the debt.

Robert Rutherfoord insisted in a reduction upon this ground, among others, that there was a manifest pluris petitio, sufficient to set aside the adjudication altogether.

Pleaded for the defenders, There was properly speaking no pluris petitio in this case, for the payments of interest by intromission with the rents, were not made, till after the date of the summons; and, the whole objection amounted to this, that in taking decree, an old paralytic woman had neglected to instruct her man of business, to deduct a small sum which she had received. In such circumstances, to reduce the adjudication in totum, or to inflict any further punishment, than striking off the penalties, or perhaps the accumulations likewise, was contrary to the practice of the Court, even, during a period, when the rigour of law, and strict adherence to form, were carried to a length inconsistent with the more enlarged ideas of the present age.

In the case, Balfour against Wilkieson, (No 18. h. t.), where a question occurred between the debtor and an assignee, notwithstanding of a pluris petitio, arising from payments made to the cedent, the adjudication was sustained for the principal sum and annualrents, accumulated at the date of the adjudication, and annualrents thereof, and for necessary charges; because, though in strict law, the objection was sufficient to strike off all accumulations; yet, where the question was with the debtor, and not with competing creditors, the practice had, for a long time, run the other way.

This practice is founded upon principles. Justice is satisfied, if the wrong be redressed, and a much greater wrong would ensue, were the effect of an undesigned error, in a trifling sum, to set aside the diligence, and forfeit the debt. Indeed, whatever advantage might be taken, of an error in point of form, in favour of competing creditors, the same indulgence is not due to the debtor himself. If the penalties be struck off, or in some cases the accumulations also, he has gained enough; but a case can hardly be imagined, where it would be just to go a greater length.

Answered for the pursuer, In certain favourable cases a pluris petitio has not been sustained to its full effect; as where an adjudication had been led for a trifle too much, and where the mistake had been occasioned by a payment at a great distance of time, which did not consist with the knowledge of the pursuer, an assignee perhaps, or a trustee. But the case is very different here, where decree has been taken for the whole sum originally due, without giving credit for considerable recent payments, made to the pursuer herself, and vouched by her discharge. Neither was this a mere oversight. In the course of the action, the pursuer repeatedly and positively denied, that any partial payment whatever, had been made, nor did she depart from that denial, till driven from it, by production of her own discharge.

Lord Bankton, v. 2. lib. 3. tit. 2. ¶ 75., says, ‘If the adjudication is essentially defective, or led for more than was due by the party, to whom the partial payment was made, it will be wholly annulled.’ And his opinion is supported by an after judgment, in the question between Rose of Kilravock, and Rose of Clava, where an adjudication was funditus reduced upon a very inconsiderable pluris petitio.

‘The Lords Sustained the adjudication as a security for principal sum, annualrents, and necessary expences, accumulated at the date of the adjudication.’

Act. Nairne. Alt. Swinton, jun. Clerk, Ross. Fol. Dic. v. 3. p. 5. Fac. Col. No 94. p. 173.