Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

William Graham of Bluetwood
v.
John and William Broun

1665. January.

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John and William Broun having comprised the lands of Overharcleugh from Robert Johnstoun in anno 1655, and William Graham of Bluetwood having comprised the said lands within year and day; he pursues the first comprisers for count and reckoning of the byrun maills intromitted with by them, that he may come in pari passu with them, conform to the late Act of Parliament, and may be preferred alike, the first compriser having only his charges allowed to him in the first end. It was alleged for Brouns, That, as to the byruns, they are bona fide possessores, having uplifted and consumed the same, according to the standing law in force for the time; and there is neither law nor reason to make them countable to a party having a posterior right, for what they had so uplifted before the making of that supervenient law. It was answered, The law makes no distinction, but brings in both together, and prefers only the first compriser as to the expense. The Lords found, That though the pursuer, Graham, should come in pari passu, yet not so but that the defenders should lucrari, and be preferred as to what they bona fide uplifted, according to their right and the law then standing;—for which, nevertheless, the Lords found, The defenders should count, to the end, the expense wared out may be first allowed to them, and the remainder ascribed for payment of the debt pro tanto; and, for the superplus debt, the pursuer and defender are to come in pari passu.

No. 134, Page 97.