Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.

James Seaton
v.
Anthonie Rosewall

Date: 4 January 1662
Case No. No 7.

Appriser must account by a rental.

For what degree of diligence he is liable.

A second appriser is allowed the compotition paid to the superior, though a prior appriser had paid a composition, if both together exceed not a year's rent.

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James Seaton and others, pursue Anthonie Rosewall, to hear it found and declared, That two apprisings, to which he had right, were fully satisfied, by his, and his author's intromission, within the legals respective, in the account. The defender alleged, he was only accountable, according to his intromission, conform to the act of Parliament 1621, anent apprisings, and not according to a rental of the lands, as they paid when he entered,—The pursuers answered, That they could not charge him by his yearly intromissions, which they could not know, but he behoved to charge himself with the rent of the lands, as they paid at his entry thereto; and if any deductions, or defalcations, were, in subsequent years, by necessary setting of the lands at a lower rate, poverty of the tenants, or waste, he behoved to condescend thereupon, and there the reasons, and verity thereof; for, in law, an apprising giving jus pignoris prætorii, the appriser is accountable for his diligence, having once entered in possession, and thereby excluded the debtor and con-creditors from the possession. It were against law and conscience to say, That if he should abstain, and suffer the tenants to keep the rent, or depauperat, or the lands to be waste, without any diligence, that his legal should thereby expire, and the debtor and creditor should be excluded; as was found in the case of the Earl of Nithsdale, and Countess of Buccleugh;* and was several times so found, by the Lords before.——The Lords found the defender accountable by a rental as the lands paid the time of his entry, but prejudice of his just defalcations, he clearing a reasonable cause thereof, and proving the truth of the same; for they thought, that albeit apprisers are only accountable for their intromission, that is, only for such parts of the lands, as they intend only to possess, and not for those they never possessed; yet in so far as they once entered to possess, they must do diligence.—It was further alleged, That no allowance ought to be given to the defender, of a composition he had given to the superior, in respect a prior appriser had given a composition before, and so he was obliged for none.—The defender answered, That both the prior and posterior composition was within a year's rent, which was due to the superior; which the Lords allowed, seeing it was not alleged that the composition of a year's rent was discharged by the superior, but only according to the custom of the burgh, where the lands lay, so much marked upon the precept received in name of composition.

Stair, v. 1. p. 74.

* There are cases between these parties, Fount, v. 1. p. 274. 387. 582. and under Annualrent in this Dictionary; but they do not seem applicable. See General List of Names.