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Common Agent in the Ranking of the Creditors of Dugald Campbell of Edderline, v Roderick Macleod. [1801] Mor 1_29 (17 June 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor01ADJUDICATION-013.html Cite as:
[1801] Mor 1_29
Common Agent in the Ranking of the Creditors of Dugald Campbell of Edderline, v. Roderick Macleod
Date: 17 June 1801 Case No. No. 13.
A creditor by bond, in which there were several joint obligants, after receiving a partial payment from the estate of one of them, led an adjudication for the whole debt against the estate of another obligant. This was found to be a pluris petitio, and the adjudication was on that account restricted to a security for the balance truly due at its date.
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In 1792, Lieutenant Allan Cameron, Dugald Campbell of Edderline, and three other persons, granted a bond for £1000 to Roderick Macleod. All the obligants were taken bound jointly as principal debtors.
Lieutenant Cameron's affairs having gone into disorder, Mr. Macleod, in the years 1796 and 1797, recovered £302. 18s. 312d. of the principal sum from his sequestrated estate.
By this time the affairs of some of the other obligants have also become embarrassed, Mr. Macleod, in 1798, after taking the proper preliminary steps, obtained an adjudication of the estate of Edderline for the whole principal sum contained in the bond, bygone interest, and penalties. Neither the summons of constitution on which the adjudication proceeded, nor the summons of adjudication, took any notice of the partial payments previously recovered from Lieutenant Cameron's estate.
Afterward, in a ranking and sale of the estate of Edderline, the common agent alleged, that there was a pluris petitio in Mr. Macleod's adjudication, in as much as it was led for the whole £1000, without deduction, of the £302. 18s. 312d. previously paid; and contended, that the effect of the pluris petitio must be to cut off the penalties and accumulations, and thus restrict the effect of the adjudication to a security for the principal, and interest truly due at its date.
To this objection Mr. Macleod
Answered: As all the debtors were bound jointly and severally, it wall not be denied that the respondent was entitled to rank on each of their estates for the whole debt, to the effect of drawing full payment. Hence it follows, that he was also entitled to adjudge each of their estates for the whole debt; because without an adjudication a personal creditor cannot rank upon an estate under judicial sale; 16th February 1784, Earls of Loudoun and Glasgow against Lord Ross, (Appendix, Part II. voce Right In Security), 21st July 1758, Creditors of Auchinbreck, No. 33. p. 14129.
Replied: Afterreceiving the partial payment, the respondent was entitled to rank for his whole debt on the estate of the other obligants only as a personal creditor. The sum due to him was reduced to £700; and it would be plainly unjust to allow a creditor for that sum, by means of an adjudication, to draw penalties and. accumulations corresponding to a debt of £1000; 20th June 1797, Edie and Laird, Apeendix, Part I. No. 9. p. 22.
The material distinction between this and the cases founded on by the objector, is, that there the partial payment was received after the adjudication; here it was received before it.
The Lords nearly unanimously sustained the objection to the adjudication to the effect craved by the objector.
Lord Ordinary, Justice-Clerk Rae.For the Common Agent, Boyle.Alt, Arch. Campbell, junior.Clerk, Home.
Fac. Coll. No. 240. p. 542.
