Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Sinclair v. Bruce
Date: 23 June 1627 Case No. No 13.
An appriser allowed to retain his security, and yet do personal execution, as he had not attained possession.
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In a suspension, against William Bruce of Symbester, raised by one Sinclair, in Orkney, who was charged, by letters of horning, to pay, to the said William, certain sums, contained in a decreet of spuilzie, obtained, by him, against the suspender: The reason was, That the charger had used comprising of the suspender's lands, for the said sums, whereupon he was infeft; and which comprising and sea sin was a real execution, which behoved to make all personal execution cease. The Lords found not this reason relevant; for, notwithstanding of the comprising and sasine, albeit the legal reversion was also expired, they found, That the charger might also use personal execution, by horning and caption, against the suspender, ay and while he were paid of his sums: And found also, That he might retain the right of the said comprising and infeftment; and that he needed not to renounce the same before he took him to the other personal execution; but that he might keep that security: By the which the Lords found, That he could not thereby be found to be satisfied of his sum, and secluded from the said personal execution, except that the compriser had obtained possession of the lands comprised. Neither was it respected, where the suspender alleged, That it was in the charger's default, that he wanted possession, seeing he had never done diligence to recover possession; nor could qualify any lawful impediment, which stayed, or could debar him therefrom; which was repelled, and the letters found orderly proceeded, ay and while he were paid of the sum.
Act. Baird.Alt. Chaip. Hay, Clerk.
Fol. Dic. v. 1. p. 15. Durie, p. 299.
