Scottish Court of Session Decisions

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

Tutor of Balmaghie
v.
Maxwell

Date: 16 January 1634
Case No. No 2.

Rents due before the expiry of the legal, are to be imputed towards extinction of the apprising though not received till after expiry.

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In a pursuit of removing of Tutor of Balmaghie against Maxwell of Cobilex, upon a comprising and infeftment thereon, wherein the defender alleging, That the comprising was extinct, conform to the act of Parliament 1621, anent comprisings; in so far as either the pursuer has intromitted, or at the least might have intromitted with the mails and duties of the lands comprised, and which would extend to as much, as would satisfy the said whole sums, for which the comprising was deduced:——The Lords repelled the allegeance, being so alternatively proponed; and found, That the compriser was liable in no further for the land, but only in so much, wherewith he actually intromitted, and was noways liable for any thing, wherewith he might have intromitted, in respect that they found the act of Parliament made him only accountable for that, wherewith he actually meddled, and no further; and that in such cases, comprisers are not liable, upon that ground, as if they might have intromitted; and found, That they are not holden to do diligence, to recover payment, or intromission, but only that they may seek the same, or omit it, as they think expedient, at their own pleasure, and no otherways. In this case, the state of the debtor is very hard, whose lands being comprised, neither the compriser is holden to do diligence against the tenants, and possessors thereof, nor can the debtor have any meddling therewith, being debarred by the comprising; so that the mails and duties may perish to all parties, and the tenants may become bankrupts without remedy.—And it being further alleged, That the appriser, that had intromitted with diverse years duties, for years running before the expiry of the comprising, which, albeit they were uplifted, after expiring of the comprising, yet being for years before the expiring, must be alike, as if the intromission had been before the same.—And the pursuer answering, That seeing the comprising was expired before his intromission, whatever intromission he had thereafter, was justly his own, and he was not answerable therefor, neither did the act of Parliament in that case militate against the same:——The Lords found this allegeance relevant, founded upon the pursuers intromission had for the years duties, owing for years before the comprising was expired, although they were not received, nor intromitted with, while the comprising was expired; and because this intromission extended not to more, nor effeired to the ordinary annualrent of the principal sum, therefore they found it could defalk no part of the principal sum, and so the compriser was in no part prejudged thereby; and repelled the allegeance.

Alt. Mowat. Clerk, Gibson. Fol. Dic. v. 1. p. 21. Durie, p. 698.