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Scottish Court of Session Decisions >>
Graham and Boyd v Malloch. [1677] Mor 14091 (22 November 1677)
URL: http://www.bailii.org/scot/cases/ScotCS/1677/Mor3214091-005.html Cite as:
[1677] Mor 14091
A right in security is an exclusive right to the subject, but not to the rents or annualrents.
Graham and Boyd v. Malloch
Date: 22 November 1677 Case No. No 5.
Found that a compriser was not liable to refund mails and duties which he had intromitted with, before a decree, on which his comprising was founded, had been turned in a libel.
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Graham and Boyd, apprisers of the Lady Barfoot's liferent, pursue a declarator against Robert Malloch a prior appriser, that he is satisfied by intromission. Alleged, 1mo, This comprising is null in toto, because it is led both upon a bond and a decreet, proceeding upon a count and reckoning, and which decreet was turned into a libel, and the debt referred to the Lady's oath, who hath never yet deponed, and so that cannot be called due; and when a comprising is led for sums heritably not due, it is null in toto; 2do, He cannot exhaust the mails and duties by the sums in the decreet, but they must be ascribed to the payment of the sum in the bond. Answered, He was in bona fide to intromit for the annualrent of both. The Lords found he was not liable to refund the mails and duties intromitted with by him before intenting this process,; though the said decreet was turned into a libel; and allowed him yet to prove the debt, in fortification of the apprising, for the Lords considered that these pursuers had done little diligence, and if Malloch had not intromitted, the common debtor would have done it. A bill given in seeking a rectification of this was refused.
