Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Bailllie of Torwoodhead v. Florence Gairdner and his Son
1683.
March. Case No. No 10.
An apprising was led by a father, for sums due to himself, in liferent, and his children in fee. There was a pluris petitio of a small sum of annualrent. The apprising found null, as to the liferent; but valid, as to the lee.
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An apprising, led by a father in his own name, for a sum payable to him in liferent, and to his children in fee; Which he was empowered to uplift, and re-employ for their use, being quarrelled as null, upon these grounds: 1mo, Twenty-nine pounds of annualrents apprised for, had been paid before; 2do, Annualrents are accumulated at 8 per cent. after they had been lowered to 6 per cent.
Answered: 1mo, The wrong casting up and accumulating of the annualrent, was an error in facto, falling under the clause, salvo justo calculo; 2do, The mistake was only chargeable upon the father, who led the apprising; and so could only be a ground to annul the same, quoad his liferent, but prejudice to the childrens fee.
The Lords found the apprising simply null, quoad the father's liferent; and would not so much as sustain it, for a security, of the principal sum and annualrents, without accumulation; but found it to subsist entire, as to the fee belonging to the children; yet they declared, that if the children obtrude the apprising, as expired, they would consider, if such a probable objection of nullity, should not purge the negligence, in not using an order within the legal.
Fol. Dic. v. 1. p. 8. Harcarse, (Comprising.) No 290. p. 68.
