Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.
Subject_2 KILKERRAN.

William Duff
v.
John Chapman

Date: 19 February 1755

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This case is reported in Fac. Coll. (Mor. 10046.) Lord Kilkerran has the following note of what passed on the bench:—

“7th February, 1755.—On moving this petition, the President said he had no doubt but that where one is infeft upon an heritable bond, he is as much secured by his infeftment for the penalty, to the extent of his necessary expenses, as he is for the principal and annualrent.

The Ordinary answered that he was of the same opinion, but that there had been here no expense laid out in prosecution of the heritable bond on the lands of Alterlies, but upon a separate estate, which also was contained in the heritable bond belonging to another debitor, who was jointly bound in the bond ; and on that ground he had pronounced his interlocutor.

Feb. 19, 1755.—The Lords found the petitioner entitled to the penalty to the extent of the expenses laid out by him.

In the infeftment of annualrent in the old form, the principal sum and annualrents only, and expense of the infeftment, were heritably secured, but in the heritable bond now in use, the creditor is secured by the infeftment, no less for the penalty to the extent of his expenses.

And of that principle the Ordinary had no doubt, but put his interlocutor on this specialty, that the expenses were not laid out in prosecuting the debt on the subject of this ranking.

But the Lords did not take this circumstance as sufficient to avoid the demand of expense. It was an heritable bond granted by two persons who were jointly and severally bound in the personal obligation.”