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Scottish Court of Session Decisions >>
Cranston v L. of Eastnisbit. [1622] Mor 64 (20 July 1622)
URL: http://www.bailii.org/scot/cases/ScotCS/1622/Mor0100064-002.html Cite as:
[1622] Mor 64
Subject_1 ADJUDICATION and APPRISING. Subject_2 APPRISING.
Cranston v. L of Eastnisbit.
Date: 20 July 1622 Case No. No 2.
The want of a previous charge of horning found to be a nullity in a comprising.
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In an action, depending betwixt John Cranston and the L. of Eastnisbit, a bond of this tenor and nature being conceived, whereby the party obliged, was bound to pay the sum then borrowed, and to infeft the creditor in an annualrent yearly therefor; and yet, notwithstanding of that heritable clause, the debtor was, by a posterior clause of the obligation, bound to pay the sum, at what time the creditor should please to seek the same, upon a simple charge of six days preceding: The debtor, giver of this bond, his land being comprised, for the principal, and expences therein contained:——The Lords found the comprising null; because the debtor was not charged upon six days to pay the principal sum, without which charge had preceded, no comprising could be deduced for the principal sum; for albeit, by the foresaid posterior clause of the bond, the necessity of a requisition was taken away, which is required in an heritable security; yet there was a necessity, by that same clause, of a preceding charge on six days.
Act. Nicolson and Craig.Alt. Hope and StuartGibson, Clerk.
Durie, p. 31.
