Scottish Court of Session Decisions

Subject_1 PAYMENT.

Clark
v.
Robertson

Date: 21 December 1675
Case No. No 4.

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Robert Robertson having apprised some tenements in Edinburgh, Mr William Clark, as having right to three posterior apprisings, insists for declaring the first apprising void by intromission. It was alleged for the first appriser, That he had counted with the common debtor, and had paid him the superplus of his intromission more than his annualrent, and that before any of the posterior apprisers had denounced or apprised, which he might lawfully do. It was answered, That intromission by an apprising being the proper and peculiar way of satisfying and extinguishing of it by a special statute, it was equivalent to a renunciation or discharge of the apprising pro tanto, which could not be given back to revive the apprising.

The Lords found, that the first appriser might restrict himself to his annualrent, or might repay the superplus more than his annualrent to the debtor, before any other apprising or denunciation.

Fol. Dic. v. 2. p. 49. Stair, v. 2. p. 389. *** Gosford reports this case:

1675. December 17.—In a suspension of multiplepoinding of a tenement of land belonging to William Ruthven of Garnes, there being a competition betwixt the said parties, as having both comprised the tenement, it was alleged for William Clark, That he ought to be preferred, notwithstanding that his comprising was posterior, because he offered him to prove, that Robertson's comprising was satisfied by intromission, and so was extinguished; for which there being an act of count and reckoning and receipts produced, granted to the tenants by Robertson, for their whole duties, it was alleged, That, notwithstanding of those receipts, yet Robertson did only intromit with as much as paid the annualrent of his money, and what he had disbursed besides for public burdens, and for reparations of the tenement, and gave in the Laird of Garnes and his tutors the superplus, upon their receipts, and so could not be liable for farther intromission, especially at Clark's instance, whose comprising was posterior to all the years of his intromission, for which he had counted, as said is. It was replied, That Robertson having intromitted by virtue of a comprising, and having taken discharges under the common debtor's hand, and his tutor, in prejudice of a second compriser, ought to be liable.—The Lords did find, that the intromission being before the second comprising, and it being lawful to the first compriser to intromit or not, or to restrict his comprising, having to do with none but the common debtor, it was lawful for him to retain no more than the annualrents and true disbursements, and the second compriser had no interest to quarrel the same, but for years subsequent to his comprising.

Gosford, MS. No 825. p. 520.