Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
David Moreis v. Orrock of Balram.
1677 and
1680.
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1677. June 20.—In a competition between real rights betwixt David Moreis, merchant in Kirkcaldie, and Orrock of Balram, a comprising was quarrelled as null and unformal; because the bond whereupon the apprising was led, bore, that the one half of the sum should not be payable till after the debtor's decease: now the apprising was led for all, and no previous trial taken that the debtor was dead.
Answers,—Offers to prove yet, that the debtor was dead ere the comprising was led, and so the term of payment of the second moiety was come.
The Lords, on Gosfoord's report, found that enough, without a previous cognition, to sustain the apprising as a real right, and give it preference so far as concerned principal sum and annualrents, and necessary expenses, but not as to sheriff-fees or penalties, or the elapsing of a legal; and so restricted it. See 31st January 1679, Irving of Drum.
Advocates' MS. No. 577, folio 286.
1677. July. 21. —The registration of a bond was found null, with the inhibition, horning, apprising, and all the other diligence used thereupon, in Moreis and Orrock of Balram's case; because it was registrate within the books of Kirkcaldie, without the jurisdiction where the granter lived, and so was forum incompetens to him; and so the extract made no more faith than a mere copy.
The Lords are turning very strict in explaining clauses of registrations now. Vide supra, February 1674, Douglas against Parkhead, No. 442, where the Lords slighted this irregularity.
Advocates' MS. No. 610, folio 294.
1680. January 13. —The action Orrock of Balram against Morris in Kirkaldie (20th June 1677,) being reported by Lord Pitmedden; the Lords, in relation to the third and fourth apprisings, led at the instance of John Morris himself, adhered to their last interlocutor, of the 23d Jan. 1678, whereby they found Orrock of Balram free of the termly failyies, but liable to the penalties of the bonds and sheriff-fees in the comprising; (for, by the Act of Parliament 1621, these are due to apprisers, and so the Lords cannot modify nor restrict them, unless there be an informality in the apprising.) But ordain the parties' procurators to be further heard upon the blank ratification produced; as likewise to be further heard as to the apprising led by James Hamilton.
Upon a second report made on the 15th of Jan. thereafter, bearing that the ratification did only relate to the third apprising, which is the first of John Orrock's two apprisings; therefore the Lords adhere to their former interlocutor as to that apprising, and sustained the fourth apprising only for the principal sum, and necessary expenses the party was at: and ordain the parties' procurators to give in an account of the necessary expenses the appriser was at, both as to that apprising and the other apprisings which are restricted to principal sums and annualrents, with power to the reporter to modify the same as he shall find just; notwithstanding of any former interlocutor, appointing ten or fifteen per cent. to be modified as expenses.
And the Lords declare, they will hear the parties' procurators Upon that point, in relation to the comprising led at the instance of Hamilton, in their own presence, anent this objection, viz. That the debtor cannot allow the expenses thereof; because Douny, cedent to the said James, having led an apprising for the same debt, James ought not to have accumulated expenses upon the debtor, by leading a second apprising for the same sum; and so it cannot be allowed to Morris, though he be only a third party deriving right from James Hamilton.
They had formerly sustained this nullity, objected against the other apprisings, that the bonds were registrate in a jurisdiction, viz. Kirkaldie and Burntisland, in which the debtor dwelt not. Vide 21 st July 1677.
