Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 LEGAL of APPRISINGS and ADJUDICATIONS.

Colonel John Erskine of Carnock,
v.
Sir George Hamilton

Date: 26 November 1712
Case No. No 10.

The benefit of expiry of the legal, is not allowed, where there is a pluris petitio.

Interlocutor.

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In the competition betwixt Colonel Erskine and Sir George Hamilton, for the lands of Tulliallan Sir George having founded on an adjudication thereof in the year 1680, led by Sir Robert Mill, for 30 years bygone annuities of an infeftment of annualrent, granted by Sir John Blackadder, then heritor, effeiring to 5000 merks, in favours of Thomas and Richard Blackburns; to which adjudication Sir George having right from Sir Robert Mill, pretended the legal was expired.——The Lords found the adjudication could only subsist as a security for the sums truly owing, and could not have the benefit of an expired legal; in in respect it was led for the whole bygone annualrents since the year 1649; whereas Sir Robert Mill had only right to the half, viz Thomas Blackburn's share, till the year 1675.

Albeit it was alleged for Sir George Hamilton, That his adjudication being articulatus libellurs, and one of the articles, viz. half of the annualrents, which the adjudger had right to from Thomas, being a good debt; the adjudication for that article must expire, and carry off the whole subject. No informality as to Richard's share, can prejudice the other, according to the rule, utile per inutile non vitiatur: Especially, considering that the infeftment of annualrent granted to the Blackburns, was in effect two infeftments, for concursu partes faciebant, and nomina debitorum ipso jure dividuntur, though a conjunct disposition of lands makes heritors pro indiviso. Thus, an adjudication led by a creditor for different bonds, if formal for one bond which is not paid within the legal, will expire, though informal as to the rest, July 6th 1699, Hay of Alderston against Children of Aberlady, (No 8. supra.)

To which it was answered for Colonel Erskine, That an adjudication for several sums, whereof some are found not to be due, useth to be sustained as a security for principal and annualrent, but not to expire as to the legal, November 23d 1677, Boid and Graham against Malloch, (Stair, v. 2. p. 565. See Bona et Mala Sides, &c.); July 20th 1678, Morrice against Orrock, (Stair, v. 2. p. 637. See Jurisdiction.); in both which cases, the libels were articulate. Apprisings led for more than is due, are opened partly in odium plus petitionis; partly, for that the leading adjudication for more sums than are due, hinders the debtor from odering to redeem; and also because of the exorbitant penal consequence of an expired legal, the Lords do grasp at any reason to keep it open. 2do, Sir George is not here in the case of one adjudging articulation for several sums; this adjudication being for the bygones of an annualrent effeiring to a sum, Nor are the annualrents articulatim libelled, the half as conveyed from Thomas, and the other half as slowing from Richard; but simply the whole annualrents from the 1649, to the 1680. So that the case here is the same, as if Sir Robert Mill had adjudged for one sum, to the half whereof only he had right. The decision Hay of Alderston against Aberlady's Children, cannot be applied: For there was nothing there to hinder the adjudication to expire, as to all the sums for which it was led; only the adjudger might have been debarred personali objectione from making use of the sums contracted after inhibition, to the prejudice of the inhibiter. (See Of the Debt which is the Foundation of the Diligence.)

Forbes, p. 635.