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Scottish Court of Session Decisions >>
Hart Osborn and Mill v - . [1680] 3 Brn 334 (4 February 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Brn030334-0441.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Hart Osborn and Mill v. -
Date: 4 February 1680
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There is a comprising led, and assigned; thereafter it expires; then the assignee pursues for maills and duties.
Alleged,—The apprising was extinct, because the cedent who led it was debtor in greater sums to the party against whom it was led; and compensation is vice solutionis; and so within the legal it extinguishes. 2do, Expired comprisings are odious.
Answered,—1 mo, The grounds of the compensation are not ejusdem speciei; for the comprising is an heritable right, and thir bonds are moveable. 2do, The debtor's executors may claim thir sums, because they fall under executry; and so he must be secured against them.
Where a back-bond is granted by an appriser before he is infeft, it affects the comprising though it be assigned to a singular successor; because the comprising is as yet a personal right: but if the back-bond shall be granted by the appriser after he is infeft, it is no more real against the assignee, but only a personal obligement upon the granter. Vide Durie, 10th March 1629, Schaw.
Where an appriser within the legal sells a part of the apprised lands, the price whereof might pay him the sums contained in his comprising, but in the disposition he reserves his right to the rest of the apprised lands; the Lords found, the legal expiring without any order used against him, he might recur to the rest, because of the said reservation; although it was alleged that the reservation was præstatio contraria facto.
