Legal Subject: Penalty

Case Date Legal Subject Abstract
Robertson v. McClure 1779 Roup, Penalty, Removing, Sist In 1758, John McClure commissioned William Robertson to offer £112 for a house and yard at a public roup (auction). According to McClure, Robertson purchased the property at a higher rate than authorized. McClure refused to pay the price. Robertson then became subject to penalties and other expenses, which compelled him to bring a process against McClure before the Magistrates of Ayr. The Magistrates granted a decree in absence, against which McClure then obtained a (sist) judicial stay. Despite this stay, Robertson then made the debt over to James Fergusson. In August 1775, Fergusson obtained a decree of adjudication against McClure on account of the above-mentioned decree and some debts that had been owed by McClure's father. Fergusson then assigned this adjudication to Robert Robertson, the son of William Robertson. Robert Robertson took possession of some property owned by McClure after which he successfully brought a process of removing against him. McClure applied by bill of suspension to the Court of Session, which was refused by Lord Gardenstone. McClure then petitioned the Court for review, arguing that both debts were invalid: one, because there was a sist on it, and the other, because it had been extinguished by a decree of mails and duties obtained by Robertson. Furthermore, he argued that because his property were jointly owned by him and his four siblings, the charger's decree of moving was erroneous in regard to four-fifths of the property.
Sir Robert Pollock v. Thomas Paton 29 Jul 1777 Penalty, Rent In 1770, Sir Robert Pollock of Pollock let the lands of Floak and Floakside to Thomas Paton, a tenant of some years. The missives of the new agreement contained an additional clause that if Paton were to plough any land in addition to what he had ploughed the previous year, he would pay £100 Scots for each additional acre. After Paton had quit Floak and Floakside, Pollock brought action before the Sheriff of Renfrewshire, requesting the requisite payment on a newly-ploughed acre and a half. The sheriff-substitute initially ruled in Pollock's favour, however after consulting with the sheriff-depute he declared the extra provision to be a penalty that must correspond with real damages. Sir Robert, the pursuer, then applied to the Court by bill of advocation, claiming to have undertaken many costly improvements of his land, which would come to nought should tenants such as Paton be allowed to plough a meadowland of rich soil. He pointed out that Paton had been under no obligation to enter into the tack, and under no obligation to plough the extra land. The defender, on the other hand, stated that Pollock was severely exaggerating the quality of the land in question; he described it as a bare moor farm whose sole improvement was a stone dike on the common march. Furthermore, he claimed that in previous years he had been allowed to plough the land in question at no additional cost. The Court found in favour of the pursuer, determining the money asked for to be a form of rent.