Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir Alexander Hume
v.
Wilson

1684. February.

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In a removing, at the instance of an adjudger, against the debtor's heir, the defender desired a locality might be assigned to the pursuer at the sight of the Lords, conform to the Act concerning debtor and creditor; 2. He alleged the adjudication was null, for that it adjudged for principal, annual-rent, and penalty, and a fifth part more; and consequently for more than was due. Answered, The clause in the Act Debtor and Creditor, concerning localities, was temporary—and relative only to these comprisings whereof the legal was prorogate, after expiring, for three or six years at most; for, had it been designed to extend to all apprisings, it would have mentioned apprisings in general, and not the said apprisings; which clears it to be only a branch of the former paragraph. The benefit again of assigning localities was in favours of the debtor, that he might force the creditor to possess; whereas here the creditor is desirous to possess. Nor can the privilege take place, except where all the creditors that have done real diligence, especially such as come in pari passu, have localities assigned them: now, the defender could not assign any localities in his land, but what might be disturbed by other creditors who have transcendant anterior voluntary rights; 2. The adjudging for the fifth part more was no nullity; because the summons being libelled in order to a special adjudication, conform to Act of Parliament, when the creditor could not know but the debtor would have produced a progress, the conclusion could not be altered upon the not-production of the progress, although that made it have the effect of an adjudication of the whole estate; but then the fifth part more was adjected as a superfluous clause, and the adjudger claims no benefit thereby. Replied, 1. That debtors might not starve during the legal comprising, which is a severe diligence, the Parliament thought fit to astrict creditors to localities, that might pay their annual-rents in the mean time, and to give them the lands after expiring of the legal, which was but a moderate laxamentum: the reason doth equally hold in favours of all apprisings; and the benefit ought to be perpetual and not temporary only, seeing, again, it is provided by the clause, That possession apprehended by apprisers, is to be ratified as restricted; that demonstrates how it respects the case of a creditor willing to possess, as well as the case of one that is unwilling, and lies off; 2. The creditor having adjudged expressly for the failyies, he ought not to have adjudged for the fifth part, which is in lieu of the failyie and sheriff-fees; for they, by Act of Parliament, fall under the fifth part, and are not accumulate with the principal sum and annual-rents. The Lords found, That the clause restricting apprisers to localities was not temporary, but a perpetual law; and that, in respect the style of decreets of adjudication had not been uniform, the fifth part more should not prejudge this adjudication, but be restricted to the penalty, if that be not adjudged for expressly, and should operate nothing, if it be; and ordained an Act of Sederunt to be extended, declaring, That decreets of adjudication, where the debtor doth not produce a progress, should run for the principal, annual-rent, and penalties only, and not for a fifth part more; and that all such adjudications for an additional fifth part hereafter should be quarrellable by the debtors.

Page 72, No. 302.