Scottish Court of Session Decisions

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

Mr William Nisbet
v.
Robert Meine

Date: 23 January 1674

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In a poinding of the ground, pursued at the instance of Mr William Nisbet, as having right, by progress, from one Gourlay, who had comprised a tenement of land, lying in the town of Edinburgh, from James Nisbet, with the pertinents, and all right that he had thereto, against Robert Meine, who was infeft in a laigh booth, which was a part of the said tenement:—

It was alleged for the said Robert, That the pursuer had no right, as being infeft upon his comprising; because the said annualrent was not specially denounced to be apprised, nor no special infeftment taken in the said annualrent; without which no comprising or infeftment of the property could carry the same, they being distinct rights of their own nature.

It was replied, That this laigh booth, being but a part of the tenement, which was disponed with a reservation of the said annualrent of £20 yearly, the said annualrent did remain as part and pertinent of the whole tenement whereof the laigh booth was a part before the disposition thereof; likeas the said James Nisbet, heritor of a great part of the tenement, against whom the comprising was led, was specially infeft therein.

The Lords did sustain the poinding of the ground, notwithstanding of the allegeance; which they found not competent to Robert Meine, who could pretend no right himself but only to the laigh booth, out of which the annualrent was reserved: likeas, he had secured himself from all hazard of the said annualrent, having allowed to him 500 merks out of the first end of the price, until the same was purged. But if any other, as having right, by a special apprising or infeftment of the annualrent from James Nisbet, had compeared and proponed this allegeance against the pursuer's comprising, it had been otherwise decided.

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