An appriser in possession was found accountable by a rental, as the lands paid at the time of his entry, without prejudice of just defalcations.
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In a compt and reckoning pursued at the instance of James Seton, being a third compriser of certain houses in Leith, from Mr James Gray, against Anthony Rosewel, who acquired a right to the two first comprisings, and was in possession, it was alleged by the defender, That he was only comptable for his own and his author's intromission, and not according to the rental produced, bearing what the lands paid at the time of his author's entry thereto; and that by the act of Parliament 1621, he was tied to no farther; and alleged also some practiques, annis 1624, and 1625. It was answered, That the defender ought to be countable for subsequent or after years, according to the rental, whereby his author meddled the first year; else, it should be lawful to a compriser, after he has removed the debtor and entered to the possession, to lift, or not lift, what duties he pleased, and consequently to ruin the debtor; whereas, when he enters to the debtor's lands, he ought tanquam bonus pater familias, to make use of the comprised lands, &c. It was replied, That before the year 1621, the whole duties belonged to the compriser for his annualrent, had they been ever so great, nor any part counted in sortem: and this being restricted by the act, and the compriser having only his annualrent, and the superplus to be allowed in the principal sum; there the law did oblige the compriser to be Comptable for more than he meddled with; against whom, within the time of the legal, the debtor may use an order of redemption when he will.
The Lords found the compriser comptable, according to the rental payable, and paid to the compriser the time of his entry, but prejudice of his lawful defences, upon probable reasons, wherefore defalcation ought to be allowed for after years.
Item, In the same cause it being alleged, That the second compriser should have allowance of the composition paid to the superior, it was answered, That the second comprising, being in effect, only of a legal reversion, it was frustra, and unnecessary to seek an infeftment from the superior; and the compriser cannot seek superfluous expenses off his debtor. It was replied, That a second compriser has good reason to seek an infeftment; because, possibly the first infeftment might be reducible upon grounds not known to him, at the instance of a third compriser, as upon payment of the debt, informality, or falsehood; so that to secure himself, the second compriser has good right to seek an infeftment.
The Lords found, that the composition should be allowed to the second compriser, providing the same with the composition paid by the first compriser, do not both exceed a year's rent; and if they did not, then to allow pro tanto. For they found, that all the superior could have for comprisings, were they ever so many, was but one year's rent. See Superior and Vassal.
Fol. Dic. v. 1. p. 236. Gilmour, No 11. p. 10.
*** The same case is reported by Stair, No 7. p. 297.
