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Scottish Court of Session Decisions >>
Cowan v L. Elphingstoun. [1636] Mor 202 (29 March 1636)
URL: http://www.bailii.org/scot/cases/ScotCS/1636/Mor0100202-021.html Cite as:
[1636] Mor 202
Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Cowan v. L Elphingstoun.
Date: 29 March 1636 Case No. No 21.
The same found.
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One Cowan having comprised Bruce of Polknavie's lands, and charging the L. Elphingstoun superior, to infeft him therein, he suspends; alleging, that his vassal was at the horn, against whom the comprising was deduced, and albeit he was not year and day rebel; yet the rebellion being in cursu, he as superior, by any entry of the compriser, ought not to be prejudged of his casualty of the vassal's liferent, when it should fall; this reason was found no impediment to stay the compriser's entry, without prejudice always of the superior's casualty, when it should fall out prout de jure, which was not meet to be tried, nor discussed in this place: And another reason was, that he could not enter him, while he were paid by the compriser, of all the bygone feu-duties owing by Polknavie, and for which he was at the horn at the superior's instance; this reason was also repelled, because the compriser was not found personally subject to pay them, but the superior might poind the ground therefor, which was reserved to him. Item, The superior claiming a year's duty, the compriser alleged, that he ought to pay no greater duty to the superior, for receiving of him, but only the quantity of the feu duty, as the vassal's right bears, his holding being a feu, for paying of fourteen bolls of victual yearly, which he is content to pay, being liquidate, and no further. The Lords repelled the allegeance, and found that the compriser ought to pay for his year's duty to the superior, an year's avail of the lands, as the same is commonly worth to be paid by a tenant, and that the offer of a year's duty of the feu-duty is hot enough.
Act. Cunninghame.Alt. Stuart.Clerk, Scot.
Fol. Dic. v. 1. p. 13. Durie, p. 809.
*** In an adjudication in implement of a disposition, however, it was found, that the above privilege, in favour of apprisers, did not take place; for it was contended, that although superiors are obliged to infeft apprisers salvo jure cujuslibet, where they get a year's rent; as allo, ordinary adjudgers for liquid debts, favore creditorum; these considerations have no place in adjudications in implement. See M'Dougall against L. Glentarchie, 24th June 1663, p. 51. v. 1. Quarto Dictionary from Stair.
