Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr William Douglas
v.
The Laird of Balfour

Date: 4 July 1671

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In a pursuit, for maills and duties, of the lands of Airly, at the instance of the Laird of Balfour, upon a comprising whereupon he was infeft; compearance was made for Mr William Douglas, who had comprised the said lands in anno 1652; whereupon he alleged, That he ought to be preferred; because his comprising was expired long before the pursuer's right.

It was alleged, That no infeftment followed upon Mr William Douglas's apprising until that year that the pursuer had led his apprising; and, by the late Act of Parliament anent debtor and creditor, it being declared, That the first effectual comprising being that whereupon infeftment follows, and that all comprisings, within year and day thereof, shall come in pari passu, as if they were one comprising, the said Mr William's comprising must be calculated from the date of his infeftment, and not from the date of the comprising.

The Lords, having considered the Act of Parliament, and the several arguments and inconveniences adduced, did find, That, by that Act of Parliament, ordaining all comprisings to be alike, within year and day of the first effectual comprising, whereupon infeftment followed, could not be extended to comprisings which were long prior to all these within year and day, or whereof the legals were expired; which was noways the meaning of the Act of Parliament, that case not being at all expressed: neither did the reason of the Act quadrate therewith, which bears only, that, within year and day, creditors, who live at a distance, may be ignorant of the diligence done by others; therefore, if they shall do diligence within year and day, they shall come in pari passu: but, where comprisings were several years before, and whereof the legals being expired, albeit no infeftment followed thereupon, the law did not at all take from them the benefit of their comprisings of old; neither did the late Act of Parliament innovate the same.

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