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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Personal Creditors of Brown of Cairnton, v Gordon. [1760] Mor 116 (16 December 1760)
URL: http://www.bailii.org/scot/cases/ScotCS/1760/Mor0100116-030.html
Cite as: [1760] Mor 116

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[1760] Mor 116      

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

Personal Creditors of Brown of Cairnton,
v.
Gordon

Date: 16 December 1760
Case No. No 30.

An adjudication annulled in totum, on account of pluris petitio; in a competition with personal creditors.


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In the ranking of the creditors of Cairnton, the following interests were produced: 1mo, An adjudication led by Gordon. 2do, A number of personal creditors gave in their claim, none of them constituted by adjudication.

Objected for the personal creditors, to Gordon's adjudication: Mr Gordon has adjudged for L. 463 Scots more than is due; and consequently the adjudication must be null and void. In some instances, indeed, notwithstanding a pluris petitio, adjudications have been sustained as security for the sums justly due. But this has only been found in the following cases: 1mo, Where the question has occurred between the creditor and the debtor himself; because he ought to have appeared, and objected to the adjudication, 2do, Where the partial payments, for which credit has not been given, were not made to the adjudger himself, but to his predecessor, and of which he might have been ignorant. 3tio, Where, if the adjudication be annulled, the effect would be, to give the other creditors a preference, and to cut the adjudger entirely out of his payment. The present case is very different. There is no excuse for the pluris petitio; it consists almost entirely in omitting to give credit for the contents of three receipts, granted by Mr Gordon, the adjudger, for money paid to himself. The objection is insisted upon, not by the debtor himself, but by his creditors; not with a view to forfeit Mr Gordon entirely of his debt, but to prevent him from excluding them; and the only effect of annulling the adjudication will be, to bring in the personal creditors pari passu with the adjudger.

Answered for Gordon: That though it may be just, that he should be deprived of the penalties and accumulations of his adjudieation, on account of the pluris petitio, it would be unjust to forfeit him entirely of the preference he had established to himself by his diligence, because he had adjudged for a little more than was due, without any design. Of old, indeed, the practice was to annul adjudications for the smallest pluris petitio; but of late, that rigour has been softened, and adjudications, in such cases, are restricted to securities. It is true, that if the adjudication is annulled, the adjudger will not lose his whole debt by the puri passu preference; but it is certain that he will lose a considerable part of it.

There is no evidence, that the present overcharge was made by design, or by fraud. Fraud is never to be presumed; and accordingly, in several cases, adjudications have been sustained as securities, though the pluris petitio was greater than in the present case; because there was no evidence of fraud; 22d December 1722, Henderson against Graham, (No 37. h. t.); 3d July 1739, Creditors of Cunningham against Montgomery. (No 23. h. t.)

There could not be a stronger pluris petito, than what was usual in general adjudications, led soon after the act 1672; by which the creditors adjudged, not only for principal sum, annualrent, and penalty, but also for a fifth part more. In such cases, however, the adjudications were only in use to be restricted to securities; till, by the act of sederumnt, 26th February 1684, the Court declared, that they would annul them in totum.

‘The Lords reduced the decreet of adjudication in totum’

Act. Scrymgeour. Alt. Burnet. Clerk, Justice. Fol. Dic. v. 3. p. 4. Fac. Col. No 259. p. 480.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1760/Mor0100116-030.html