Subject_1 ADJUDICATION and APPRISING. Subject_2 ADJUDICATIONS and APPRISING pass periculo petentis; and all Defences are reserved contra executionem, unless instantly verified.
Colmslie v. E Roxburgh.
Date: 12 March 1629 Case No. No 18.
The same sound.
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A Charge against the superior to receive a compriser's assignee, being suspended by the superior, because the compriser had made another assignee to that comprising judicially, as use is frequently to be done; and that assignee had made another assignee, and so the same had passed from hand to hand, and might be transmitted by many assignations, which the superior was not holden to acknowledge; for he alleged, That albeit he might be compelled to receive the assignee to whom the comprising was legally assigned; yet, he could not, of law, be compelled to receive that assignee's assignee, no more than upon his vassal's resignation, he could be compelled to receive him in whose favours the same was made; which reason was repelled, seeing he only received but one vassal by virtue of that comprising, no other being received thereupon: It was also here found, that the superior could not be compelled to receive the compriser, except he shewed that the debtor was infeft; albeit the charger offered to prove, that his father, to whom he was apparent heir, was infeft; and also shewed a decreet of declarator of this same debtor's liferent of the same lands, gifted by the same superior to a donator; in which gift the superior had granted, that the same lands pertained heritably to the said debtor, and thereby gifted his liferent thereof, which liferent was declared in favours of the donator. Likeas, the said liferent right being again returned by the donator to the superior, the superior was in possession of the lands by virtue of that liferent, and so he could not allege that the debtor was not infeft, notwithstanding whereof, it was found, that the compriser should shew that the debtor was infeft, seeing the declarator of liferent might be against an apparent heir as well as against one infeft; but this declarator was not obtained but as the liferent of a vassal who was infeft.
Act. Craig.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 13. Durie, p. 436.
