Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Representatives of William Kay v. Cleghorn
Date: 12 December 1678
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In a cause pursued by the executors and representatives of William Kay, late bailie in Edinburgh, against Cleghorn a baxter there, before the Commissaries of Edinburgh, for payment of a debt which they referred to his oath; he deponed, it was true he was once owing that debt, but it was as true he had paid it, but only the sum of yet resting. This being advised by the Commissaries, they repelled the quality of payment, and ordained him to prove it aliunde.
This being quarrelled upon iniquity, before the Lords, in a suspension, they found the quality intrinsic, and assoilyied, and would not divide the oath. See 14th November 1677, Edgar; 30th July 1678, Hamilton; and Dury, 10th July 1624, Kinloch; 28th March 1629, Gall.
Vol. I. Page 29.
Anent Comprising.
It was queried, where a man comprises landy of a value worth less than the sum he deduces the comprising for, if he can charge his debtor for the super-plus of the sums above the value of the lands comprised. Some think he cannot, because the style of comprising runs, that the lands apprised are adjudged and decerned to him in payment and satisfaction of the sums apprised for, and doth not say, in satisfaction pro tanto; and so like a judicial vendition, the appriser seems to acquiesce, and accept of the apprised lands for payment. But this seems durum et iniquum; however, it is not yet decided, and it were surest, in such a case, to make the decerniture words of the comprising to bear only pro tanto, and in part of payment. Craig thinks, p. 331, he may crave the remanent; and the Roman law decides the same, l. 28 D. de Reb. Cred; for an apprising is pignus prætorium. And the 6th Act, Parl. 1621, decides he may crave the remanent.
