Click here to view a pdf copy of this documet : PDF Copy
Lo. Cranston, superior of the lands of Salwoodsheil, pursuing declarator of liferent against Sir John Scot, as son and apparent heir to his father, who was the pursuer's vassal, wherein Andrew Scot compearing, who had comprised these lands, being a creditor to Sir John, alleged, That he being creditor to him before he was rebel, and having denounced the lands to be comprised, albeit after he was rebel, yet before he was rebel year and day, and thereafter having completed the comprising, and charged the superior to enter him, that ought to stay the declarator. The Lords repelled this allegeance, and found that his comprising, deduced and perfected after the debtor was rebel year and day, and a charge following thereupon, could not prejudge the superior of the casualty of the liferent of the apparent heir of the vassal; in which casualties, the Lords found, that the superior was not hurt by the foresaid denunciation, which preceded the expiring of year and day; the debtor the time of the said denunciation, being standing rebel unrelaxed, and so in cursu, but being expired before the comprising was expede; for it was found, the superior ought not to want the casualty of his vassal's liferent, except that either he had done some deed himself in prejudice thereof, or that some deed had been done equivalent thereto, as comprising, and charge to enter and receive the compriser, and all done and execute before the expiring of the year.
Act. Nicolson & Craig.Alt. Gilmor.Clerk, Gibson.
Fol. Dic. v. 1. p. 256. Durie, p. 569.*** Spottiswood reports the same case:
Sir John Scott of Newburgh being denounced rebel; before he was year and day at the horn, his lands were denounced to be comprised at the instance of Andrew Scott chirurgeon in Edinburgh, but year and day was expired before the lands were comprised. The Lord Cranston, superior to the said Sir John, craved a declarator of his liferent escheat of the same lands comprised. Alleged for Andrew Scott, That he had comprised these lands, and by virtue thereof, was in possession. Replied, His comprising could not prejudge the superior of his casualty through the remaining of his vassal rebel more than year and day, especially seeing his comprising was after year and day, at which time, jus erat acquisitum superiori. Duplied, Albeit his comprising was after the expiring of year and day, yet the denunciation was within year and day, which made that the defender being a creditor, could not be prejudged through the rebel's remaining at the horn unrelaxed attour year and day. The Lords found that the superior could not be prejudged of his right by any deed not done by himself; neither that the denunciation (being but an imperfect deed ay and while comprising followed thereon) could sist the course of the rebellion, and frustrate the superior of his casualty, unless the comprising had been perfected before the year and day expired.
Spottiswood, (Escheat and Liferent.) p. 105.
*** The like was decided in the case, Rule against Renton, 24th July 1632, Section. 2. h. t. No 13. p. 3624.
