Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Alexander Monteith v. Sir George Elphinston
Date: 14 December 1615 Case No. No 14.
By the older decisions, the superior, was not bound to infeft the appriser, without instructing his author's right.
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In the suspension raised by Alexander Monteith against Sir George Elphinston, who had comprised the right of two ploughs of land of Dunbreck, from Lord Salton; the Lords found, that Alexander Monteith could not be obliged to infeft him upon the comprising, except Sir George would show that the Lord Salton was infeft. Item, In the same cause, the Lords found, That Sir George ought to pay to the superior, for his infeftment, 80 punds which is the annualrent of the principal sum of 1200 merks, whereupon the lands are wadset: And so the Lords found, That in a wadset comprised, the superior of the wadset ought to have the benefit of the act of Parliament: And also they found, That the said duty ought to be paid to the superior of the wadset; notwithstanding it was replied, that by the contract of wadset, the superior was obliged to infeft the Lord Salton, because that should be craved ex contractu, and not upon the comprising.
Fol. Dic. v. 1. p. 13. Hope, (Superior.) V. 2. Folio 73. MS.