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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gairns v Joussie. [1682] Mor 246 (00 November 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor0100246-020.html
Cite as: [1682] Mor 246

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[1682] Mor 246      

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

Gairns
v.
Joussie

1682. November.
Case No. No 20.

In a competition among adjudgers, found that the composition to the superior ought to be paid out of the fore-end of the rents as a part of the expence of the first effectual apprising.


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Mr william gairns, one of the ministers of Edinburgh, as having right to an apprising led at the instance of John Brown, merchant there, of the lands of Fodderate, having pursued the tenants for mails and duties; and there being compearance made for John Joussie, and the Laird of Drum, who had right to the first effectual comprising of the lands: It was alleged for them, that they ought to be preferred to the mails and duties, by virtue of the first effectual comprising; and, albeit Mr William Gairns was within year and day, yet he ought not to be admitted to come in pari passu with Joussie and the Laird of Drum, before first he make payment of 2000 merks, that Joussie had paid to the Laird of Drum, as superior, for his entry, and of the expences for leading of the apprising, conform to the act of Parliament anent Debtor and Creditor. Answered, That Joussie had paid no sums to Drum for his entry, and albeit he had paid him any sum, yet the pursuer was not obliged to pay him the same. But all that Joussie could pretend, as having right to the first effectual comprising, is, that he should be preferred to so much of the mails and duties, as will pay the composition and expences in the first place. Replied, That albeit Drum had entered Joussie upon the comprising gratis out of kindness and affection to him, yet that could not prejudge him nor Drum, as coming in his place, to crave the expences of the apprising and composition, that should have been paid by the other apprisers; and, it is not sufficient, that Joussie or Drum should be preferred to so much of the mails and duties, in the first place, as will satisfy the same. But, the pursuer, who craves to come in pari passu, ought ante omnia to pay the composition and expences in ready money. It being provided by the foresaid act of Parliament, that the creditor having right to the first apprising, shall be satisfied by the posterior apprisers claiming the foresaid benefit of the whole expences disbursed by them, in deducing and expeding the first comprising, and infeftment there-upon. The Lords found, that the composition paid to the superior, ought to be paid out of the fore end of the rent of the lands; and therefore, decerned the tenants to pay the said sum of 2000 merks to the Laird of Drum, as the expence of the first effectual apprising; and to pay the rest of the rents to all the comprisers that come in pari passu together, according to their respective rights.

Fol. Dic. v. 1. p. 19. Sir Pat. Home, MS. No 256.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor0100246-020.html