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Scottish Court of Session Decisions >>
Couper v M'Martin. [1627] Mor 2700 (24 February 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0702700-007.html Cite as:
[1627] Mor 2700
The Lords refused to take away a standing comprising ope exceptionis, though it was for an heritable debt never made moveable by a charge.
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When comprisings are led against apparent heirs that will not enter, there must two charges be used, a general and a special. The first is præparatoria actionis, and is contra personam; the last is præparatoria executionis, and is contra fundum: For the general charge is to make a man enter heir to his father, &c. that sicklike action may be had against him, as against his father, &c. and this makes the party, charged to enter heir, to come in place of his father, and is the ground of the sentence of registration, &c. following thereon. After the obtaining of a sentence against him, as lawfully charged to enter heir, then the special charge is used, charging him to enter to such and such lands, after which charge comprising followeth. And this order in charging must be kept in all comprisings; so that the special charge cannot go before sentence be recovered against the party charged to enter heir, because it is a part of the execution of the sentence, which cannot precede the sentence itself. This was found between John M'Martin and Andrew Couper, who were striving upon priority of diligence, who should be first infeft by the Earl of Cassilis, superior of the lands which they had both comprised, wherein Andrew Couper's comprising being prior was not sustained, in respect he had used both the charges, viz. general and special, before the sentence, and so against the inviolable custom observed in such cases.
In the same action, Andrew Couper's comprising being challenged as null, because the ground of it was an heritable bond, never made moveable by a charge, (which was a plain nullity of the law, and took away the comprising in solidum;)——The Lords would not take away the comprising standing ope exceptionis, but found it behoved to be reduced.
The like found between the Lord Balmerino and Gilbert Elliot of Stobbs, 10th July 1634.
