Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
Kincaid v. Haliburton
Date: 18 November 1624 Case No. No 3.
An apprising carries the reversion of a preferable apprising.
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In an action, betwixt Doctor Kincaid and James Haliburton, for redemption of some lands comprised from Mr Robert Monro, by the said James Haliburton, Dr Kincaid desired the lands to be redeemed at his instance from the said James, as having right to the legal reversion, by reason of a comprising deduced at his instance. In this action, one Monro compeared, who had also comprised the same lands, but posterior to James Haliburton and Dr Kincaid. Monro alleged, that Dr Kincaid's comprising was null, and so could not support this action of redemption at his instance; as thereby he could not be found to have right to James Halliburton's legal reversion of his comprising, in respect that the said pursuer had denounced the land to be comprised before James Haliburton; so that, at the time of his denunciation, there was not a legal reversion, nor any right thereof then extant; there being then no other denunciation, nor comprising, used before the pursuer's denunciation, which might occasion any legal to have been extant. This allegeance was repelled; for the Lords found, albeit the pursuer was the first denouncer of the lands to be apprised, and that James Haliburton denounced after him, which James Haliburton had comprised before the pursuer; yet, under the first comprising, albeit second in denunciation, the property of the land was comprehended; and so thereby James Haliburton ought to be preferred to Dr Kincaid, who had comprised after him, albeit he had denounced before him; and that the right of the legal reversion, which was, or might have been competent to Monro, the common debtor, against whom all the comprisings were deduced, fell under Dr Kincaid's comprising. It was alleged, That it could not fall under the same; and that nothing could fall under the comprising, but that which could be comprehended under his denunciation; and, at the denunciation, there was no legal extant; but the Lords found, That the second comprising, albeit proceeding upon the first denunciation, ought to extend to all right, which, at the time of the said second comprising, was inherent in the person of him, from whom the comprising was deduced, and, consequently, to the said legal reversion; therefore, they preferred him to the third compriser, who claimed to be preferred to the Doctor, the second compriser. The third compriser alleged, as said is, That the legal fell only under his comprising; as he had denounced when the legal was extant, viz. after Haliburton's comprising was complete, and perfected; and that Kincaid's comprising, proceeding upon a denunciation, which could not extend to a legal, which was not then in rerum natura, could not carry the reversion; but this plea was repelled. The contrary of this was found in terminis, in an action, betwixt Malloch and Murray against Weir, in July 1620. But the Lords found this last decision the most just, and would hereafter so decide.
*** It is a common opinion, where comprisings are deduced for sums, whereof a part is paid before the comprising, that the comprising falls in totum, and will not subsist for the rest of the sums, which are truly owing; and this was found in the action betwixt Lamb and Blackburn, and L. Smeiton, anno 1613, (see p. 95.): But there are many who doubt of the equity of that opinion, and think it no reason, that the comprising should fall for the sums which are truly owing, no more than horning and poinding, or arrestment, if they be executed for more than is owing, will not cause the whole execution to fall, but only for so much as is not a just debt; and a decreet, obtained for more than is due debt, will not make the sentence to fall in totum: And this hath warrant also from the civil law, de plus-petitionibus. But the reason of the common opinion is, for the fraud of the compriser, to apprise for that which he knows to be wrong, and his fraud is therein punished; but where there is no appearance, or suspicion, of fraud, there the law admits place of excuse, nam potest existimari inique judicasse, qui reum omnino absolverit, cum constaret & probatum sit, eum partem debere.
