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Scottish Court of Session Decisions >>
William Gairden and Sir James Keith v Irvine of Drum. [1682] 3 Brn 439 (21 November 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Brn030439-0650.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 21 November 1682
William Gairden and Sir James Keith v. Irvine of Drum
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In the competition arising on the process of maills and duties pursued by Mr William Gairden, minister in Edinburgh, and Sir James Keith his cedent, between them and Irvine of Drum; the Lords, upon Castlehill's report, brought in Keith's comprising pari passu with Jousse's which Drum had acquired in; because, though it was neither within the year and day before nor after it, yet they found it sufficient that it was deduced and led before the first effectual comprising, and its priority in date before the first said effectual apprising ought at least to give it the privilege of pari passu with that whereon charge and infeftment had been first taken.
This has been oft so decided. And they found Gairden and Keith were not instantly obliged to pay down their proportional parts of the expenses of the said preferable apprising and its infeftment, ere they could have the benefit of coming in pari passu with it; but that they might allow the said preferable appriser to possess and uplift the maills and duties aye and until he were paid of these charges and debasements; and then, after that, brought them in paripassu for the remnant: but if Drum would not possess, then they preferred Gairden, he paying Drum his expenses out of the first end of his intromission.
