Scottish Court of Session Decisions

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

The Creditors of Neil Macneil,
v.
James Saddler

Date: 7 March 1794
Case No. No 35.

An adjudication found to be null, which was led upon a decree for payment of the random sum of L. 10,000; although it reserved all objections contra executionem; no proof of the debt having been produced when the decree was obtained; and the sum really due having turned out to be only L. 800:10:7 4-12ths, currency of St Christopher's.

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William Saddler, of the island of Nevis, merchant, in 1758, entered into copartnership with Neil Macneil. Their trade was carried on in the island of St Christopher's, under the management of the latter, who, upon the dissolution of the company, in 1761, was entrusted with winding up their affairs.

In 1763, Macneil eloped from St Christopher's, carrying with him effects belonging to the company, to a considerable amount.

Saddler, knowing that Macneil, at this time, had heritable bonds, for L. 6722 sterling, over the estate of Taynish, in Scotland, sent a power of attorney to a man of business in Edinburgh; and, at the same time, desired him to attach these bonds for payment of the large balance which he then imagined, Macneil owed him. Having, however, no access to the company-books, which were in Macneil's custody, he had no means of ascertaining the amount of his claim against him. His information to his agent here was, consequently, in very general terms:

“That Macneil, after receiving every shilling he could, had eloped from this island, and carried with him L. 7000 or L. 8000, and had taken protection in the Danish island of St Croix; where he is not only protected, by that government, in his person, but his effects; by which his creditors will be defrauded of their money; amongst whom, I am the most considerable sufferer.”

Without receiving any farther information from Saddler, his agent executed an arrestment, jurisdictionis fundandæ causa; and, on the 24th February 1764, raised a summons of constitution against Macneil, for payment of the random sum of L. 10,000; which, it was stated, “would appear to be due to the pursuer, upon a just count and reckoning.”

When the summons came into Court, appearance was made by the defender's attorney, who denied the libel; and stated, “That it was led for a random sum, unsupported by evidence.” To which it was answered, That there were already adjudications led against the defender; and that, therefore, in order to put the pursuer in pari casu with them, it was necessary that decree should be pronounced, reserving all defences contra executionem. Accordingly, in February 1765, a decree was obtained under this reservation.

Saddler's agent soon after raised a summons of adjudication, narrating the decree of constitution, and the reservation which it contained; and, on the 8th August 1765, he obtained a decree, adjudging Macneil's interest in the estate of Taynish, for payment of the accumulated sum of L. 10,724 sterling.

In 1780, this adjudication was produced as an interest for James Saddler, the heir of William, in the ranking of Taynish; but, as the decree of constitution had proceeded without any evidence of the debt, the company books, which had been recovered from Macneil, were transmitted to this country; and a remit having been afterwards made to an accountant, to ascertain the precise balance due by Macneil; the accountant made a report, that no more than L. 800:10:7 4-12ths, currency of St Christopher's, was due.

The other adjudgers, of Macneil's bonds on the estate of Taynish, contended, That the adjudication was null in toto; and

Pleaded, 1mo, The decree of constitution, and, of consequence, the adjudication, is fundamentally void, as having been obtained without any proof of the debt; (See Proof.) Neither will the reservation which it contains, of all objections contra executionem, support it. The only cases where such reservations have any effect, are those requiring dispatch, where the pursuer shews proof of his libel, ex facie legal and sufficient, and the defender states defences which cannot be instantly verified.

2do, Supposing it had been competent for Mr Saddler to have adjudged, he mistook the proper form.

As his claim was illiquid and contingent, in place of adjudging for payment on the act of 1672, he ought to have led an adjudication in security, the legal of which never expires; President Falconer. No 102. (See What Subjects are carried by Adjudication); Forbes, 12th July 1711, Blaw against his Father, (See Provisions to Heirs and Children); Fac. Coll. 16th February 1759, Nisbet against Stirling, (See Adjudication in Security); 14th November 1781, Brown and Collinson against the other Creditors of Sir Thomas Wallace, (See Adjudication in Security.)

3tio, The extravagant pluris petitio would of itself be fatal to the adjudication, even if it were otherwise unexceptionable. It is led for L. 10,724 sterling; and it turns out, that there is only L. 800:10:7 4-12ths, currency, due.

In adjudications upon the act 1672, as well as in the old apprisings, the debt, for which the lands are adjudged, is, in law, held to be a price commensurated to their value for which the lands are sold under reversion; and, as it does not follow, that because the debtor allows them to be adjudged, and sold for a particular sum, he would have done so, if the sum had been less, the consequence must be, that an adjudication ought to be set aside, when the debt turns out to be less than the sum adjudged for Accordingly, in practice, a pluris petitio is always fatal to the diligence, as a proper adjudication. In very favourable cases, indeed, such as where partial payments have been made without the knowledge of the creditor, or where the debt is found to be less than what was supposed, in consequence of the subsequent decision of points of law, it is sustained as a security for the debt, without the accumulations; but this is converting it into a right of a quite different nature, and may be regarded as one of the strongest exertions of the nobile officium of the Court. In cases like the present, however, where the pluris petitio is considerable, and where there is no plea of favour on the part of the creditor, the adjudication is always reduced in tato; Fac. Col. 16th December 1760, Creditors of Brown against Gordon, (No. 30. h. t.); 4th February 1784, Apparent Heir of Porteous against Sir James Nasmith, (No. 34. h.t.)

Answered, 1 mo, The debt, for which the adjudication was led, arose, not from any clear document by which its amount could be instantly verified, but from a fraudulent act on the part of Macheil, which made it impracticable for Saddler to give his attorney, in this country, precise information respecting the extent of the balance due to him, or to transmit any vocher for instructing it. And, as other creditors of Macneil were adjudging the fund in mectio, the year and day must necessarily have elapsed, before more accurate information could have been got from the West Indies. In this situation, the adjudging for a random sum, reserving all defences contra executionem, was a measure justified by the necessity of the case; as otherwise, the preference given to adjudications within year and day, would often amount to an absolute exclusion of just creditors residing in foreign countries.

2do, The adjudication in question was substantially one in security; for, as it proceeded on a decree of constitution, containing a reservation of all defences contra executionem, it appeared, ex facie, to have been obtained for a debt, not yet properly liquidated. The legal, therefore, could never expire; it being thus admitted, that the sum which the debtor Was to pay, in order to redeem it, was to be the subject of after discussion.

3tio, When adjudications were substituted in place of apprisings, although they still bore the form of sales under redemption, they came in reality to be considered merely as securities for debt; and hence the voiding an adjudication in toto, on account of a pluris petitio, became as unnecessary as it was rigorous. If led for more than the real debt, nothing can be more simple than to reduce it, quoad excessum, allowing it to subsist as a security for what is justly due. Accordingly, for a long time part, the practice has been merely to restrict the adjudication to that sum, striking off penalties and accumulations; Kilkerran, p. 17. 6th November 1747, Ross against Balnagown and Davidson; (No 27, h. t.) 3d December 1751, Creditors of Castle Sommerville against Lookup, (No 28. h. t.)

The Lord Ordinary reported the cause, on informations.

Observed, on the Bench: Where grounds of debt are produced, and there is not sufficient time to discuss defences stated against them, decree ought to be pronounced, reserving all objections contra executionem. But here the adjudication proceeded on a decree pronounced, without any evidence of the debt. In such a case, the pursuer must take care that his demand be not beyond what is justly due; whereas, here the pluris petitio is perhaps the greatest that has ever occurred in this Court. Creditors taking decrees for random sums, with a view to adjudge, should always conclude for less than the real amount of their claim; or, if they with to take every chance, they should separate the sum clearly due to them from that for which they have only a doubtful claim, and make a distinct conclusion for each.

The Court unanimously “sustained the objections to William Saddler's adjudication; and found, That, in virtue thereof, James Saddler is not entitled to be ranked upon the subject in question.”

Lord Ordinary, Craig. For Saddler, Solicitor-General Blair, John Clerk. For Macneil's other Creditors, M. Ross, Morthland. Clerk, Home. Fol. Dic. v. 3. p. 6. Fac. Col. No 113. p. 250.