An heritor offered to redeem not only the comprising held by a particular creditor, but generally all other comprisings. This offer, although not specific, was sustained.
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David Murray having acquired the heritable right of the lands of Drumelzier, from the Laird of Drumelzier, and being made assignee by him to all the legal reversions of any comprisings, of any of the lands of the said barony of Drumelzier, deduced either by the Lord Yester's self, or any other creditors, pursues the Lord Yester to hear the lands redeemed from him, not only for the comprising at the Lord Yester's own instance, but also for all other comprisings deduced by whatsoever other creditor, the right whereof is become in the person of the Lord Yester, by assignation, or other right made thereof to him, by the comprisers of their rights; which summons being so generally libelled and conceived, and not bearing the names of the persons creditors specially who had comprised, nor yet the special sums, for which these creditors had comprised, but only that the pursuer had consigned such a special sum, whereto he affirmed the whole comprising did extend, and if the same did extend to any greater sum, that he was content instantly to consign and pay the same, they being condescended on and instructed by the Lord Yester; and it being alleged that such a redemption ought not to be sustained, and that the defender could not in law be compelled to instruct the pursuer to libel a pursuit against himself; for except both the comprisers and their sums were specially expressed in the order of redemption, and declarator intented thereon, he alleged no process could be granted;—the Lords repelled the allegance, and sustained the order and action, in respect that the pursuer offered instantly to consign all sums, whereupon comprisings were deduced, whereof the rights were established in the defender's person, if the same were more than the sums consigned in that order; and it was probable ignorance in this pursuer not to know them all, being a singular successor, and the danger of the expiring of the legal reversion, required in equity this action to be sustained, which otherwise might expire; likeas the defender could have no prejudice to receive complete payment of all his debts, for which the comprising was deduced as was offered; and if there was any other comparing, whereof the right is not become in the Lord Yester's person, this action would not extend thereto, nor prejudge the same; therefore the action was sustained, and the defender was ordained to condescend and qualify the particular sums, whereto he had right by any comprising, competent in his person, as said is.
Act. Nicolson and Baird.Alt. Smart.Clerk, Glbson.
Fol. Dic. v. 2. p. 322. Durie, p. 568.*** Spottiswood reports this case:
My Lord Yester both having comprised the lands of Drumelzier himself, and being made assignee to sundry other comprisings led at other men's instances; David Murray of Halmyers having right to the legal reversions, used an order of redemption, and pursued a declarator thereupon against the Lord Yester; wherein the pursuer libelled, that the Lord Yester had comprised the lands libelled himself, at least others in his name, and to his behoof, or at least has transmitted the same in his person, which whole comprisings he sought to redeem; for doing whereof he had consigned the sum of 24000 merks, whereunto the whole comprisings will not extend, or at least if they did exceed it, the pursuer was content presently to consign the rest. Alleged, The summons was not relevant, being altogether general, not condescending what comprising were led of the lands libelled, nor what sums, nor at whose instance. The Lords repelled the allegeance, for they thought the pursuer could not be more special, comprisings not being such public deeds as every one can know of them, but they that are at the leading of them.
Again alleged, The pursuer's summons concluded, that the defender might be decerned to renounce all right competent in his person, but also because he had gotten the gift of Drumekier's liferent, the pursuer craved, that the said right of liferent might be comprehend within the said order, and the defender ordained to renounce it as well as his comprisings; because, said he, the defender having gotten the liferent first, and after having comprised the lands, the former right of liferent was absorbed by the following comprising, and subsisted no longer. The defender alleged, Nothing could fall under the redemption, but the comprisings, which were subject to reversion, and not the liferent, which was diverse right, and of a different nature from the former. Which allegeance the Lords found relevant.
Spottiswood, p. 265.
*** The latter part of this case is reported by Durie, No 45. p. 3711. voce Executor.
