Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 APPRISING.

Livingston
v.
Goodlet

Date: 22 February 1704
Case No. No 14.

The want of a charge which had formerly induced a nullity in apprisings, now in dissuetude.

The Court have no power to prorogate legals.

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Anna Livingston, and James Edmonston of Broich, her husband, pursue for mails and duties, on a comprising of the lands of Gairdoch; Goodlet of Abbotshaugh compears, and craves to be preferred, as having apprised these lands long before, and you are neither within year and day, nor did you use an order of redemption within the legal, so my apprising being expired, I am proprietor, and you cannot compete with me. Alleged, Your apprising is null for want of a previous charge of horning, to make the debt moveable; and which was sustained as a nullity, 20th July 1622, Cranston against the Laird of Eastnisbet, (See Apprising, No 2.) and this should be the rather sufficient to open the legal, to make it current, and your apprising redeemable, that the lands are ten times above the value of the sums apprised for; and it were very hard to carry away a great estate for a small sum, and by an odious expiration to ruin debtors, and to exclude all other lawful creditors; and here the nullity is pleaded to no other intent, but to prevent an exorbitant unjust advantage, for the will pay him his whole principal sum, annualrents, penalties, and accumulations, with the interest thereof since the disbursing, and all expence he can crave; so no more is intended, but to get access, as a posterior creditor, to the remanent part of the debtor's estate, after he is satisfied cum omni causa. Answered, The old decisions did seem to require a charge previous to the leading a comprising; but since the year 1627, (now 70 years back), the decisions have clearly run in the contrary, as appears from the practiques cited by Stair, book 3. tit. 2., and which is become so firm and uncontroverted, that it is now looked upon as a principle; and though a comprising be led for never so small a sum, if within the legal it be not wholly paid, but some part of it is still resting, there is no remedy; it carries the property, if you be not within year and day, to come in pari passu with it; or if you have neglected to use an order of redemption, within the legal, to stop its running; or, 3tio, If you cannot subsume and prove he is satisfied and paid by intromission, or otherwise, within the legal; then, if there were never so small a part of it resting, that carries the property of the whole lands apprised ob pænam negligentiæ, whatever the disproportion be betwixt the sum and lands; and upon this bottom, of expired comprisings, stands the security of most of the estates of Scotland, which, like a corner-stone, is non tangendum, non movendum.—The Lords repelletd the nullity for the want of a charge; seeing that has been omitted to be done past memory; and, as to the advantage taken of carrying away the estate by an apprising for a small sum, the Lords found that it was not in their power to remedy: they have, in deed, in such odious cases modified exorbitant penalties, to hinder estates from being swallowed up by such apprisings; but if that will not do the turn, they have no power to prorogate legals, and keep them open, else they might be the arbiters and disposers of all mens estates: and therefore the Lords preferred Goodlet, and sustained his comprising to carry the right of the lands, and refused Livingston's offer to pay him cum omni causa.

Fol. Dic. v. 1. p. 5. Fount. v. 2. p. 226.