Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Magnus Aytoun v. John Lauder
1672.
February.
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Magnus Aytoun, pursuing for mails and duties upon his apprising of my Lord Ramsaye's lands of Dalhousy and Caringtoun, compearance was made for John Lauder, the first appriser, and it was alleged that Magnus could have no decreet for mails and duties till the first appriser were satisfied by him of the expense of leading his comprising and expeding his infeftment, conform to the act of Parliament in 1661.
To which it was answered, 1mo,—That all he would be liable in would only be a proportional part, and that effeiring to his sum, there being no posterior apprisers beside him. This was sustained.
Then 2do, He could pay no part of the said charges, because he offered him to prove, that John Lauder, the first appriser, had intromitted with more of the farms of thir lands since his apprising than the said expense would amount to, and so he could crave none of it from him.
Replied,—It is true he has intromitted with more than that expense would come to; but it is as true that any intromission had by him must be primarioascribed and imputed in payment of his annualrent, and then (quod creditor percipit imputatin usuras, et post in sortem, per LL. a Cujacio citatas in Titulo Cod. In quibus causis pignus tacite contrah.)2do tantum loco for the expenses of his apprising; now all his possession will not pay the half of his annualrents due by virtue of his apprising.
My Lord Advocate, notwithstanding all the pains we took on him, found that the first appriser's intromission with the duties of the apprised lands must be ante omnia ascribed in payment to him of the expenses wared out in deducing and leading his apprising, (which expenses are sors durior and so must first be presumed paid,) and then next for payment of the annualrents. Vide supra, No. 118, [Tailfer, January 31, 1671.] and infra, No. 340, [Home against Preston, June 15, 1672.]
