Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 FORMALITIES of the DILIGENCE.

Alexander Duncan of Strathmartine,
v.
John Scrimzeour of Kirktoun

Date: 3 July 1707
Case No. No 4.

Where requisition is stipulated in the bond, and not made till after decree of constitution; the adjudication is, on account of that omission, restricted to a security.

Interlocutor.

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John Scrimzeour of Kirktoun, having obtained decreets of constitution against Wintoun of Strathmartine, as lawfully charged to enter heir to his father, for payment of principal sums, annualrents and penalties, contained in his father's heritable bonds, without using previous requisition in the terms of these bonds: And having thereafter made requisition, and then adjudged, the days of requisition being expired before executing of the summons of adjudication, and the requisition therein narrated: Alexander Duncan, the purchaser of the said estate of Strathmartine, raised reduction and improbation of Kirktoun's adjudication; and contended, it was null, as proceeding upon decreets of constitution, which are null, for decerning to make payment of penalties in heritable bonds bearing requisition, though no preceding requisition was made.

Alleged for Kirkton. That a clause of requisition does not suspend the debtor's obligement, or any ordinary action for payment, provided he have forty days induciœ, from the citation to the day of compearance; but only suspends summary diligence by horning, caption, or adjudication. Nor was the adjudication quarrelled, led immediately upon the heritable bonds, but upon a decreet of constitution, following upon a general charge to enter heir, which took off the necessity of extra-judicial requisition: Seeing, thereby, the debtor had a longer forbearance than the terms of the requisition would have allowed. Now to clear that such solemnities may be supplied by judicial acts, intimation is a legal solemnity, as requisite to complete an assignation, as requisition is necessary to make way for summary diligence; and yet a charge of horning, or a process, supplies the want of intimation. And, in the case of decreets cognitionis causa, the charge to enter heir and process supply requisition: Consequently requisition may be supplied by a process. 2do, et separatim, Requisition was used for the more security, after obtaining of the decreet of constitution.

Replied for Duncan of Strathmartine. As the want of requisition would have afforded, to the debtor, a good ground of suspension against horning and poinding; so it affords a good defence against the constitution, upon which these diligences might follow; at least, in so far as concerns a penalty, which is only incurred in case of not-payment of the principal, and annualrents, after requisition. And, albeit a constitution might be pursued against an apparent heir, for principal, and annualrents, such a one could not be pursued and decreeted for penalties, which neither he nor his predecessor had incurred. Nor can the charge to enter heir, supply requisition, in this case, as is alleged in the case of decreets cognitionis causa; which the heir cannot quarrel, because of his renunciation; and by which he is not prejudiced, being only decerned, dicis causa, to sustain the person of the defunct, that the bœreditas jacens may be affected for. what is libelled periculo petentis. For, in processes of constitution, the heir can only be pursued to pay the sums in his predecessor's obligement, in the terms thereof; and so may justly quarrel a decreet against him for exorbitant penalties, never incurred by his predecessor. 2do, No regard can be had to the requisition produced, because not used, debito tempore, before the decreet of constitution for principal, annualrents, and penalties: And, though libelled upon in the adjudication, it is not therein marked produced.

Duplied for Kirktoun. It is not only denied, that the penalty could only be incurred by a previous requisition, but the contrary is certain For, it were in vain to use requisition against an apparent heir, who is not bound in the bond, till once the debt be constituted against him by a decreet.

The Lords restricted Kirktoun's adjudication to a security for his principal and annualrents, upon this nullity, That it was led for heritable sums which required requisition, and yet no requisition was used before the decreet of constitution against Wintoun of Strathmartine, as lawfully charged to enter heir to his father.

Thereafter, July 19. 1707, Kirktoun craved, that the Lords would sustain his adjudication, as a security for principal, annualrents, and a fifth part more, in regard of his lying out, and wanting the use of his money these ten years bygone; or at least, would allow him the termly failzies, incurred through the not-payment of annualrents, which required no requisition, and the necessary charges debursed in procuring his adjudication, and expeding his charter and infeftment.

Answered. The act of Parliament allows not a fifth part more, except in the case of special adjudications: And, how could that be allowed here, where the adjudication doth not bear it? And, the containing an additional fifth part would, by the act of sederunt, have been another nullity. 2do, The claim, of termly failzies, is most extravagant; because, a null adjudication, can have no penalties; and no advantage taken of debtors is more hard upon, and usurious, than the termly failzies: And nothing is due under the name of necessary charges; the debtor being in no culpable mora, by the null and irregular diligence used against him.

Replied. There is nothing more reasonable, than that Kirktoun should have some allowance for his losing the interest of his annualrents, which became a principal sum to him when he paid the creditors; seeing the reason, why the act of Parliament allows a fifth part more to adjudgers, is because of their wanting the use of their money. 2do, Kirktoun's adjudication is not found intrinsically null; but only restricted, upon an informality in the requisition: And it is ordinary to sustain an adjudication, where accumulations are cut oft, as a security for principal sum, annualrents, and necessary expences. Nor are the termly failzies of an annualrent any hardship; these being small, and proportioned to the annualrent.

The Lords adhered to their former interlocutor; and refused to allow either a fifth part more, or the termly failzies.

Forbes, p. 175.