An heritable bond, when it becomes Personal, so as to be the foundation of Diligence.
Colthird v. Paterson
Date: 2 March 1624 Case No. No 5.
Found in conferinity with the above.
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In an action betwixt Colthird and Paterson, the Lords sustained a comprising deduced upon a bond, for payment of a sum to the compriser; which bond, bearing the debtor to be obliged to pay annual, was an heritable bond, albeit the bond and sum therein contained was not made moveable by any requisition, or other preceding charge, executed or given before the comprising, in respect of the tenor of the bond, whereby the debtor was obliged to pay the sum to the creditor at any term whereat he pleased, without any requisition preceding to have been made; and therefore seeing the bond provided not that the creditor should be holden to use any preceding charge, but that it bore, that the debtor should pay at any term whereat the creditor pleased; as at any term, the term being bypast, he might poind, so he might also comprise therefor; for, by the comprising, he declared his will, and it was a lawful and ordinary execution, as poinding or horning is. This was proponed in a double poinding.
Act. ———.Alt. Sandilands.Clerk, Scot.
Fol. Dic. v. 1. p. 536. Durie, p. 116.*** Haddington report this case:
In the double poinding betwixt Patersons and Colthird, the Lords found, That a bond being given for payment of 1000 merks, and failing thereof, to pay annualrent; and nevertheless, if, either at that term, or any time thereafter, the party liked to have his principal sum, that they should pay the same; that the party might crave the principal sum at any time after the term of payment, and that a comprising for the said sum was lawful, albeit Paterson had neither charged to pay the sum, nor made premonition for it.
Haddington, MS. No 3046. p. 2127.
*** See a similar decision, 4th July 1627, Edgar against Finlayson, No 95. p. 5536. voce Heritable and Moveable.
