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Scottish Court of Session Decisions >>
William Baillie of Torwoodhead v Florence Gardiner. [1683] 3 Brn 459 (27 February 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Brn030459-0690.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 27 February 1683
William Baillie of Torwoodhead v. Florence Gardiner
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William Baillie of Torwoodhead reducing a comprising led by Florence Gardiner against his father; the Lords found it null, because it was led for L.50 Scots more than was due; as was proven by two of his receipts produced.
The Lords now begin to look upon comprisings as so odious, that they are but very bad and uncertain securities, if they have but the least crack or flaw in them; for, upon very minute informalities, they reduce them quoad penalties, sheriff-fees, and the expiration of the legal, and the accumulative annualrents; and only sustain them as a collateral security for principal, annualrents, and true debursed expenses: though this be done ex officio maxime nobili, like a trysting interlocutor; for, in strict law, they should either find them null or valid.
Then Torwoodhead craved he might count for the whole rent of these years whereof he uplifted a part, seeing he does not condescend on a legal impediment that debarred him from the rest.
But this cause being again heard on the 14th March 1683, in presence; the Lords sustained the comprising, because the granter of the receipts was only liferenter in the bond; though it bore a power to him to uplift it: as also found the granting of these receipts was not an entering to the possession of these lands so as to make him countable for the whole rents, but that he behoved only to count for his actual intromission. So that the Lords in effect altered and reversed their former interlocutor.
