Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 RANKING of ADJUDGERS and APPRISERS.

Streit
v.
The Earl of Northesk and Innes

Date: 13 December 1672
Case No. No 23.

The first apprising being extinguished by payment; posterior apprisings, within year and day of the second, will not rank with it, unless they had been also within year and day of the first.

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The estate of Reidcastle being apprised by Young, and he infeft, Streit apprises within year and day of Young, and the Earl of Northesk and others apprise within year and day of Streit, but not within year and day of Young; Young's apprising being satisfied, Streit insists for the whole duties; Northesk and the other apprisers allege, That Young's apprising being extinct, it is in the same condition as if it had never been; and so Streit being now the first appriser, all the rest that are within year and day of him, must come in pari passu with him.—It was answered, That this was both contrary to the words and intent of the act of Parliament between debtor and creditor, bearing expressly, That all apprisings led within a year of the first effectual apprising, shall come in pari passu, as if one apprising had been led for all the rest; so that albeit the first apprising should become extinct, that alters not the case as to other apprisings; nor can it be subsumed that a second appriser was the first effectual apprising; and if this ground should hold all apprisers behoved to infeft, or charge, otherways if the first should be satisfied, all the rest, though at twenty years distance, must come in together, none of them being more effectual than another.

The Lords found the posterior apprisers could not come in with Street who was within the year of the first apprising.

Fol. Dic. v. 1. p. 17. Stair, v. 2. p. 133.

*** The parties, in this case, are called by Gosford, Nicolas and Others against The Earl of Northesk and Others; and the particulars, as he states them, are these.

In the action for mails and duties, pursued at Mr Nicolas's instance, as compriser of the lands of Redcastle, compearance was made for the Earl of Northesk, who alleged, That he ought to come in pari passu with the pursuers, because his comprising was within year and day of the pursuers.—It was alleged, That Alexander Young being the first compriser of that estate, and the pursuers being within year and day of him, they must all be preferred to the Earl of Northesk, whose comprising is not within year and day of the said Alexander Young.— It was replied, That Alexander Young's apprising was satisfied by the common debtor, and extinct: And therefore, the Earl of Northesk's comprising being within year and day of Mr Nicolas's, he ought to come in pari passu with him. —— The Lords did prefer Mr Nicolas, and the rest of the comprisers; and found, That by the act of Parliament anent Debtor and Creditor, that the special reason for making posterior comprisers come in pari passu with the first, was that they had done diligence within year and day of him, which could not be alleged for Northesk: And therefore, albeit the first comprising were satisfied, all the rest who had comprised within year and day, behoved likewise to be satisfied, before any posterior compriser could come in with them; the act of Parliament declaring their comprisings to be repute, and holden as good and valid as if the first comprising had been led for all their debts; and if it should be otherwise, they found that it would open a door to infinite pleas, and frustrate creditors of their just diligence, by buying in of first comprisers.

Gosford, MS. No 543. p. 290.