Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.

Grant
v.
Grant

Date: 22 June 1680
Case No. No 8.

An apprising valid, notwithstanding of articles of compensation against the appriser, who is not bound to propone compensation against herself.

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William Grant having adjudged the wadset-right of the Bridge-town of Spey, from one Barclay, pursues for mails and duties. Patrick Grant compears, who alleges, That he has a posterior adjudication, which is preferable, because the first proceeds on a sum contracted by a father to his son, in his contract or marriage, by which the tocher is also payable to the son; so that, though the contract be onerous as to the wife, yet it is merely gratuitous as to the son.—It was answered, That, at the time of the contract, the father, had a sufficient estate to pay his debt, beside this small provision of 1000 merks,—Which the Lords found relevant. It was further alleged, That, though the father's solvency should not be proven, yet Grant's adjudication cannot be preferred; because it is null, being for the Laird of Grant's behoof; who, before deducing thereof, had entered to possession of the wadset, and thereby was satisfied: At the least, he ought to have compensated, and deduced the rents of the wadset lands.—It was answered, That Grant had entered to the void possession, relinquished by the wadsetter's heir; which he might do, both because the wadset was in non entry, and because, by the late act of Parliament, 1661, between debtor and creditor, he might enter into the wadset. 2do, No man is obliged to comperisate against himself; nor can compensation take effect, but when it is proponed; and, though compensation might now be allowed against the adjudication, yet it will not annul the same; nor can it be sustained, further than what is liquid, and instantly verified; which is the annualrent of the wadset sum, and not of the wadset land, which must abide probation.

The Lords found the adjudication valid; and that the adjudger was not obliged to deduce, upon sums compensible, unless compensation had been proponed; but sustained the compensation, now to restrict the adjudication, for the annualrent of the wadset sum, and for the remainder of the rent of the wadset lands; if it were instantly verified and liquidated by writ, or the adjudger's oath; but found, That Grant had no right to the surplus-duty, nor to the non-entry, without declarator, or by the act of Parliament; without a sentence upon offer of caution to the wadsetters.

Fol. Dic. v. 1. p. 9. Stair, v. 2. p. 773.