Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.

Mr Archibald Moncrief
v.
L Balrounie.

Date: 11 July 1629
Case No. No 7.

A comprising found to carry mails and duties, prior to its date; the lands being in the natural possession of the debtor. -

Search for moveables at the dwelling-house presumed, where the words of the execution general.

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A pursuit being moved by a compriser, for the mails and duties of the comprised lands; the comprising not being expede before Martinmas 1628, but being dated the 12th or 13th day of the month, and the pursuit being for the year 1628; whereby the defender alleged, That his title being after both the terms, the pursuer had no right to that year's farms thereby: The allegeance was repelled; for the Lords found, That seeing the denunciation preceded the term of Martinmas, and the comprising was expede before Yule, which was the term of payment of the farms; and that the defenders convened for payment, were the same persons from whom he had comprised, and were convened for payment, and that no others were convened, who might allege intromission with the farms, or payment thereof bona fide to any other, beside the compriser; therefore the action was sustained upon this comprising, for the said crop, against these defenders, from whom he had comprised. Also the said comprising being quarrelled, because the party had not searched and sought, before the denunciation of the land, for the moveable, and poindable goods, at the parties dwelling-house; and that the comprising proported not that the officer had sought at the dwelling-house; but only bearing, that he sought upon the ground of the lands comprised; which he alleged was not enough, as said is, and therefore, that the comprising was null; seeing the moveable goods ought to be discust by poinding, before the ground can be comprised; and which, the party alleged, could not be well discust, except the moveables had been sought at the parties dwelling-house, and that the execution had borne the same.——The Lords repelled the allegeance, and sustained the comprising; albeit it bore not per expressum, that the moveables were sought for at the dwelling-place; for the same bearing, that the officer sought upon the ground of the land comprised, it implied, that he sought all the parts of that land, and consequently at the dwelling-house, if any was upon that land: And it was not found necessary; at the least it was found, that it would not annul the comprising, for not seeking at the parties dwelling-place, which was not upon the ground of the lands comprised; and found, that the excution needed not proport the same; for, if any person had land in any distinct corner of the country, which the creditor intended to comprise, and that he had diverse dwelling-houses in other corners of the kingdom, far remoter, and distant from the lands comprised, it were iniquity to the creditor to be compelled to go to all these places, and search for moveables there; and this action for the mails and duties was sustained, upon this comprising, without sasine; being pursued against the debtor, against whom the same was deduced; he being possessor of the lands comprised himself, and no other having right proponing the same, even as the compriser had been made assignee to the duties; the comprising, in effect, being but a judicial assignation.

Act. Mowat. Alt. Nicolson. Clerk, Scot. Durie, p. 460.