Scottish Court of Session Decisions

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

Creditors of Castle-Somerville
v.
Mr John Lookup

Date: 3 December 1751
Case No. No 28.

A cautioner paid, for the principal debtor. He obtained partial relief out of his estate. He adjudged the co-cautioner's estate, for the half of the original debt, not the half of the balance. The adjudication restricted.

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David French of Frenchland, borrowed 2000 merks; for which he, together with James Somerville of Castle-Somerville, and Robert Thomson, Merchant in Glasgow, granted bond, 7th February 1719.

Robert Thomson paid, and obtained assignation, 15th February 1722, in these terms:

“ That he might obtain payment and relief of the hail sums from the said David French; and of the half from the said James Somerville;”

whereon he adjudged, 1723, David French's estate, for the accumulate sum of 1896 pounds: This he disponed to Mr John Lookup, minister of Calder, who recovered 697 pounds out of the principal debtor's estate, at Whitsunday 1731.

Mr John Lookup, 4th December 1734, adjudged the estate of Castle-Somerville, for the half of the sums in the bond; with interest from the date, and penalty effeiring thereto.

In the ranking of the creditors of Castle-Somerville, it was objected to this adjudication, That it was led for more than was due by James Somerville, co-cautioner with Robert Thomson, seeing Mr Lookup had received part of the debt out of the principal debtor's estate; which ought to be applied equally to the relies of the two cautioners.

Pleaded for Mr Lookup, Being assigned to the bond, he was in place of the original creditor, and entitled to adjudge for the whole debt; and, though against his co-cautioner, he might be obliged in equity to restrict: his demand to the half; yet this ought not to annul his diligence, which in law he was entitled to lead.

2do, Somerville not having adjudged French's estate, can have no advantage from what was drawn out thereof, in virtue of the accumulation made by Thomson's diligence; and therefore, the interest received by Mr Lookup, on the sum in his adjudication, cannot be stated in so far as it rose on the accumulation.

3tio, Suppose Mr Lookup, in virtue of his adjudication on Frenchland's estate, had drawn out thereof any sum, short of the half of the debt, he might have adjudged on Castle-Somerville for the other half, to secure himself to the extent of the relies Somerville should be found owing him.

Pleaded for the other creditors: Mr Lookup had, at leading his adjudication, received payment of part of the debt, out of the principal debtor's estate; he ought therefore to have deducted that out of the gross debt, and craved relief against his co-cautioner only for half of the balance. The interest of the accumulate sum, on the adjudication of Frenchland, comprehended interest of the original bond; and yet, in his adjudication of Castle-Somerville, he states the whole interest thereon as due. He must account for the full sum he received; stating it against the sums due on the original bond, whether or not it arose by accumulations on Frenchland; for co-cautioners must act bona fide,and not take advantages against each other.

The Lords found, That the adjudication deduced by Mr John Lookup against James Somerville, was deduced for more than was due to him; and found, That it ought to be restricted to, and subsist as a security for, the principal sum and annualrents only, due to the said Mr John Lookup.*—(See Cautioner.—Solidum, et pro rata.)

Murkle, Reporter. Act. H. Home. Alt. A. Macdowal. Clerk, Justice. Fol. Dic. v. 3. p. 5. D. Falconer, v. 2. p. 293.

* Lord Kames, in his second Volume of Remarkable Decisions, notices the same case, thus:—In a ranking of the creditors of Castle-Somerville, an objection was stated against the interest produced for Mr John Lookup, that he, had knowingly adjudged for more than was due; and though Here was a plain mala fide pluris petitio, yet, out of regard to equity, the Court sustained the adjudication, as a security for the principal and interest, without expences or accumulations: After which, there can scarce be any prospect of cutting down an adjudication in totum for a pluris petitio.

Remarkable Decisions, No 127. p. 271.