Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Chalmers v. Helen Dalrymple
Date: 25 November 1701
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John Chalmers, writer, against Helen Dalrymple, relict of Daniel Dalrymple The point in controversy was, If an adjudger, not infeft, but who had charged the superior to enter him, could pursue a removing? It was Contended, That the charge was a sufficient title to remove now, since the 62d Act of Parliament 1661, regulating payments betwixt debtor and creditor; which does indefinitely, without limitation, equiparate apprisings with a charge following thereon, as equivalent to an infeftment: And Stair, book 2. tit. 9. shows that, of old, removing was not sustained on such an incomplete right as a comprising with a single charge, without denouncing the superior; 25th March 1628, Lockhart against Tenants; yet, since the said Act of Parliament 1661, he thinks it will be now otherwise; and it is a very unfavourable and disobliging diligence for vassals to denounce their superiors.
Whereunto it was answered,—That it was plain, both from the narrative and statutory part of that Act 1661, that it was never designed to determine this question, if it was a sufficient title in a removing: all that was under the Parliament's consideration there, being only to clear that all apprisings led within year and day of the first effectual comprising should come in pari passu, and be reputed a part of the first apprising. Now, seeing it might be inquired what they esteemed the first effectual apprising, they, to define this question, declared the first effectual appriser to be him who either had the first infeftment, or had done diligence for obtaining it, by charging the superior, though other apprisings might be prior to him in date; so that it ought no way to be extended ad casum non cogitatum, of being a title in removings.
The Lords thought the case new, and ordained it to be argued in their own presence; but the generality thought it not sufficient.
