Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

John Muir, Writer to the Signet,
v.
Shaw and Chalmers

1684. Feb.

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An apprising being quarrelled as null, in so far as annual-rents paid were apprised for;—Alleged for the defender, That he being assignee to the bond, the ground of the apprising, and to the bygone annual-rents resting owing, and ignorant facti alieni, he had reason to presume all annual-rents were resting; so that his apprising for some that were paid could be no nullity, but only infer a restriction. Answered, Though such a mistake in an assignee to an apprising, in so far as it is to his own behoof, might be excused, yet it must operate a nullity, in so far as the apprising is to the behoof of the cedent, who assigned to annual-rents generally, without restricting precisely to what were due; as such an apprising, led in the cedent's own name, would have been simply null. The Lords found the apprising, in so far as it was to the behoof of the cedent, simply null, and not to subsist as a real security: but, before pronouncing interlocutor, it was recommended to settle the parties. Vide No. 283, [Mr Edward Wright against Earl of Annandale, January 1683;] No. 290, [Baillie of Torwoodhead against Florence Gairner and his Son, March 1683;] No. 311, [Margaret Crawfurd against Oliphant of Condy, March 1685;] and No. 312, [1ady Hisleside against Matthew Baillie, February 1685.]

Page 73, No. 304.