Scottish Court of Session Decisions

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

Mr George Clapertoun
v.
The Laird of Torsonce

1666. January.

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There was a comprising deduced at the instance of the Laird of Torsonce, or James Brown of Colstoun, to his behoof, of the lands of Wyllicleugh, against Ramsay, as lawfully charged to enter heir to the deceased Sir George Ramsay of Wyllicleugh, his father, and George his brother, in June 1616. After which, there was a second comprising led, within fourteen days, at the instance [of] Mr Alexander Kinnier: to which Mr George Clappertoun, having right, used an order of redemption of the first comprising against Torsonce, and others having interest, before Whitsunday 1664; to which term the legal reversions of all comprisings, whereof the legal was not expired in January 1662, was prorogated by Act of Parliament 166l. And now he craves that the order may be declared, and that the first comprising may be found satisfied, either by disposition made by the first compriser, of some of the lands, the worth whereof doth far exceed the sum due by the first comprising, [or] by his intromission with the rents and duties of the lands within the years of the legal, as it is now prorogated. It was answered by Torsonce, That the libel is not relevant, unless the pursuer would allege that the comprising was satisfied within seven years after deduction thereof; for, by the law then standing, after the expiring of the seven years, the lands became his irredeemable property, and it was thereafter lawful to him to dispose thereupon at his pleasure: likeas, though he did dispone the lands of Wyllicleugh to the apparent heir for 11,000 merks, and did retain the lands of Kippilaw for making up what he wanted of the sums comprised for, yet the late Act of Parliament can only be extended against such first comprisers who have the right standing in their person for the time; and not against such who, after expiring of the seven years, had disponed the comprised lands before that Act. 2. Any intromission the compriser, or any others having right from him, had before the said late Act of Parliament, and after the said seven years, being of the rents bona fide uplifted and consumed as his own, by the law then in force,—he cannot be countable therefor. It was replied, That the prorogation granted, by the law, to Whitsunday 1664, is without any distinction of comprisings, and is to have all the effects as the comprisings and legal reversions would have had, if the legal had not expired before the same term to which they were prorogated, being dated seven years only before, according to the former law;—so that, whatever sums of money or rents the compriser, or any having right from him, has uplifted, and what lands have been disponed for the price, they are to be countable therefor, and the lands to be redeemable; and the price paid for the lands is to be counted also; and, if it be not satisfied by the defenders' intromission, the pursuer may be liable, pro tanto, in place of the sums comprised for in the first comprising. And, upon the same ground of the prorogation, the defenders ought to count for the rents as well after as before the expiring of the legal, by the former law. The Lords found the comprising redeemable, notwithstanding of the foresaid disposition; and the compriser is to be satisfied of 11,000 merks, to be allowed always in part of the sums comprised for; and the defenders to be countable for the whole bygone maills.

No 177, Page 127.