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Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Scarlet v. Paterson
Date: 7 December 1631 Case No. No 17.
An appriser, who did not renounce, but whose possession had not yet produced full payment, found entitled to poind, but not to execute caption.
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Helen Scarlet having comprised from John Paterson, a tenement, the legal whereof was expired; before which comprising, the lands were burdened with an annualrent, which exhausted almost the yearly profit of the land, and mails thereof: She, after decease of her debtor, and expiry of the legal, pursues the son of her debtor, as behaving himself as heir to him, to make payment to her of the sum, for which she had comprised; and he alleging, That by the foresaid comprising, she must be reputed satisfied, and cannot return to seek personal execution for that debt, whereof she was satisfied by the comprising the legal whereof was expired; and so she was become heretrix of the land, unless she would renounce, and resign her comprising and infeftment habili modo: And the pursuer replying, That the comprising cannot hinder the creditor to seek payment, and to use all competent means to obtain payment, besides the comprising, seeing the same is unprofitable for her, through the burdening of the said anterior infeftment of annualrent; and she needs not renounce the comprising, but being paid she shall renounce the same: And the defender duplying, That albeit the annualrent should exhaust the whole mails of the lands, (which was not granted,) yet the heritable right thereof subsisting in the compriser's person, was more worth than the whole debt of the comprising.——The Lords found the comprising, although expired, hindered not the compriser to pursue the heir of her debtor for that same debt; and notwitstanding thereof, she might obtain, and seek action and dentence against him therefor, to the effect she might comprise the heir's lands, and poind his goods for her satisfaction; but found, That so long as the said comprising stood unrenounced by the pursuer, whatever sentence she should recover against the heir, she should not be heard to use any personal execution thereupon, either of caption, warding, or horning, but only poinding of his goods, or apprising of his lands, as said is.
Act. Cunninghame & Scot.Alt. Stuart & Primrose.Clerk, Scot.
Fol. Dic. v. 1. p. 15. Durie, p. 605.
