Scottish Court of Session Decisions

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

Brown of Coalstoun
v.
Edward Nicollas

Date: 5 February 1673

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In a pursuit, for maills and duties, of the Lands of Dunglass, at the instance of Edward Nicollas, as being infeft upon a comprising in August 1668; compearance was made for several other comprisers who had comprised the said lands, whereof Alexander Young was the first compriser; who alleged,—That, by the late Act of Parliament anent debtor and creditor, they ought to come all in pari passu, and the rents divided equally amongst them. Compearance was made for Brown of Coalstoun, who was infeft in an annualrent effeiring to ten thousand merks, out of the said lands, and in possession of a term's annualrent, before all the comprisers, except Alexander Young and Nicollas; and alleged, That he ought to be preferred as to his annualrents, because he was infeft and in possession, before all the comprisers except these two; and as to these two prior comprisers, albeit by the late Act of Parliament they could be in no better condition than those comprised within year and day, yet, as to the annualrent, he ought to be preferred in solidum, seeing the Act of Parliament is only made as to comprisers within year and day: but, as to annualrenters, they are not at all prejudged thereby, but must be in that same condition they were before the Act of Parliament. And the law, giving them preference after the date of their infeftments and possession, to all other creditors who had done no diligence by inhibitions nor comprising, which were not in rerum natura, when they lent their money, they were in bona fide to contract upon an infeftment of annual rent with the common debtor: otherwise no creditor could be secured, or take a wadset disposition, or any other real right of the debtor's lands, until year and day should pass after the first comprising; which were to obstruct all commerce amongst the subjects, and render the fundamental law, as to securities, void and elusory; which was never the meaning of the Act of Parliament, the only reason thereof being, to obviate the prejudice that many creditors might suffer, being at a great distance, by the diligence of others, who, by a prior comprising, did seclude all others, unless they were reduced, as the law, before that Act of Parliament, did provide.

To this it was answered, That the Act of Parliament being express and special, as to all comprisings within year and day, making them as valid and sufficient as if they all had been contained in the first effectual comprising, which undoubtedly, in law, is preferable to an infeftment of annualrent posterior thereto, that benefit and right cannot be taken from them upon a pretence of inconvenience; unless there had been a particular exception of annualrent granted after the first comprising, but before subsequent and posterior: whereas there is no such exception; but, on the contrary, the Act bears only, that it shall be but prejudice of annualrents, which were prior to the first comprising by infeftment; and that the annualrent not being paid until after the comprising, they should not be prejudged thereof, but that they might be drawn back ad suam causam, and the lands comprised therefor; or a poinding of the ground might be gotten, according to the laws standing before the Act of Parliament.

The Lords, having much reasoned among themselves as to this case, being full of inconveniences on both hands, did at last find, That the two first comprisers, prior to the annualrenter, should be preferred as to the maills and duties effeiring to the sums, contained in their comprisings; and, in the next place, the annualrenter; and all posterior comprisers within year and day, should come in pari passu as if the annualrenter were a compriser: upon this reason, —that the first comprising could not be prejudged by a posterior annualrenter; and, that the bond whereupon the infeftment of the annualrent followed, was prior to the first comprisings; so that the great inconvenience of prejudging posterior comprisers by a voluntary deed of the common debtors, could not be here alleged. And yet this decision seems to be against the express Act of Parliament, ordaining all comprisings, within year and day, to come in pari passu with the first: whereas if the first comprisings were for great sums, and the annualrenters effeiring thereto should absorb the most part of the duties, the posterior comprisings, having the annualrenter joined with them, might receive little or no satisfaction, contrary to the intent and express will and meaning of the Act of Parliament. Likeas it seems strange to make an annualrenter to be considered as he were a compriser, their rights being so distinct and different in their own natures. So that the decision seems hard, and, in reason, the case was such as the Parliament could only have decided, et egebat constitutione imperatoria.

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