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Scottish Court of Session Decisions >>
James Pillans v David Plenderleith and Andrew Burn. [1682] 3 Brn 443 (24 January 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Brn030443-0658.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Pillans v. David Plenderleith and Andrew Burn
Date: 24 January 1682
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January 24.—The competition between Mr James Pillans, late one of the Regents of the College of Edinburgh, and David Plenderleith, writer, being reported by Tarbet, Lord Register; the Lords found, that David Plender leith being creditor to Hepburn of Craig, the common debtor, the time of the leading his comprising, in other sums of money besides those contained in his comprising, that he, with consent of the said common debtor, might afterwards, in a stated account betwixt them, apply his intromissions to the payment of these other sums, albeit these other sums were not due to him the time he got the assignation to the maills and duties; and that the comprising is neither null nor extinct thereby, but that the said second apprising does stand; and the order used thereupon is good for purging Pillans's first apprising, in all sums standing in Pillans's person; and therefore ordain Pillans to count and reckon.
This seemed a hard decision; but was to maintain diligence led.
Vol. I. Page 170.
December 21.—David Plenderleith, writer, against the above mentioned Mr James Pillans, (vide 24th January 1682,) and Andrew Burn, tenant in Craig; the Lords, on Saline's report, did repone Mr James, and Burn the tenant, against the decreet which David had taken out against them on circumduction, in regard they on a bill had been reponed against that circumduction, and had offered themselves, by way of instrument, ready to depone. But, as to the steelbow, found it was not so much pars fundi instructi as to belong to an appriser; who had indeed right to all the maills and duties, the corns and silverrent, payable by the tenants, but not to the straw so long as his legal was not expired; but that the same was moveable.
But this point may very well be debated, why the straw should rather follow the ground,
And the Lords found Craig the debtor, during the running of the apprisings against him, might dispose the said straw to David Plenderleith, and that he as assignee had right thereto, and not the apprisers: but, in regard Burn the tenant was out of the ground, and had left the straw to the entrant tenant, they assoilyied him; and found, since it was the straw of the crop 1676, that Mr Pillans, or any other intromitter with that year's rent, ought not to be liable for the said steelbow, in so far at least as the rent was meliorated and improven the following years, by having so much steelbow straw upon the ground; which if the tenant had wanted, he could not have paid so great a rent.
But it being represented, that they who uplifted the rent I676 got not the straw, but it remained still with the tenant; therefore Saline inclined to decern the assignee David Plenderleith to get the straw of this last crop 1682, as, by progress from year to year, surrogated and come in place of the straw crop 1676 specifice disponed to him.
