Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Meldrum L Clunie.
Date: 30 January 1628 Case No. No 14.
If there be no impediment to prevent the compriser's possession, and he does not renounce; not entitled to use personal execution.
See No 16.
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In a suspension; by Andrew Meldrum against: L. Clunie; he desiring to be relieved out of ward, wherein he was committed by Clunie; the Lords found the reason of suspension relevant, upon a comprising of the suspender's lands, deduced by Clunie, for that same debt for the which he was incarcerated; which comprising stood unrenounced by the charger, albeit no possession was apprehended thereby. The Lords found this sufficient to produce liberty to the suspender; for the same behoved to be reputed as payment, seeing the party neither would renounce the same, nor shew any just cause which might make the same appear to be unprofitable to him, nor qualify any impediment, which of the law might have debarred him from the possession of the lands comprised, seeing he had never done diligence to recover the same. And so the Lords found, That the creditor ought not to retain the comprising, and also detain the debtor in ward.
The like was done, the 9th of February, betwixt Hunter and ———; where the comprising was found to take away personal execution, so long as the comprising was not renounced; albeit the comprising was not clad with possession, seeing the compriser alleged not, that he was debarred by any lawful impediment, after diligence done by him.
Act. Mowat.Alt. Lawtie.Clerk, Gibson.
Fol. Dic. v. 1. p. 15. Durie, p. 336.
