Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Black
v.
The Laird of Pitmedden

Date: 20 July 1633

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One Black, a compriser, charges Pitmedden to enter him to the comprise lands; and he craving a year's duty; the compriser answering that he had possessed the lands comprised, himself, a whole year since the time of the charge given by him to the superior to receive him, which he was content to allow to him for the year's duty now acclaimed for his entry; and the other answering that the year's duty ought not to be allowed for the year due to him in law, for his entering of the compriser, because he had an undoubted heritable right to the lands, by virtue whereof he intromitted; and if this compriser may evict that year's rent of the lands from him, by virtue of the comprising, he shall refund the same; but there is no reason that, upon that pretext, he should quit his lands, and receive a compriser, unless he pay the ordinary usual duty, done by all comprisers to the superior for receiving of a vassal in lands comprised; and if he can make him, in the ordinary pursuit moved thereanent, to be liable in law for any intromission with the duties of the lands, whereto the compriser may claim right, he shall make answer in its own time and place thereto; but it is not proper to be handled in this place, where, in law, the year's duty is justly acclaimed and payable by the vassal. The Lords found, nevertheless, that,—seeing the superior had intromitted with a year's duty of the land since the charge given by the compriser, and that after the parties had disputed upon their rights, which either of them might claim to that year's duty,—that the same was due to the compriser, and not to the superior; albeit he was, that year and many other preceding years, in possession of the lands by the space of 20 or 30 years preceding, by virtue of an heritable disposition made to him of the lands; and therefore the same being due to the compriser, seeing he allowed that year's intromission to the superior, they found it should compense for the year's duty acclaimed for entering of the compriser, and that they would not astrict the compriser to pay a year's duty, and reserve his action against the superior for his intromission; but found that the one should compense the other;—and therefore ordained the superior to enter the compriser without paying of any other new duty.

Act. Stuart. Alt. Nicolson and Baird. Hay, Clerk.

Vid. 18th July 1633, Branden Baird and the cases there.

Page 688.