Subject_1 ADJUDICATION and APPRISING. Subject_2 Of the DEBT which is the FOUNDATION of the DILIGENCE.
Ker v. L Lempitlaw.
Date: 11 February 1630 Case No. No 4.
A comprising was sustained, tho' led for the whole sum, after part of it had been paid by the compriser himself, in respect the debtor, who had appeared in the constitution, had omitted to state the payment.
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In a reduction of Lempitlaw's comprising; because Lempitlaw, before the comprising, had discharged a part of the sum, for which he had comprised:—The Lords found not this reason relevant, but assoilzied therefrom, in respect that this discharge was competent to have been proponed by the reducer, before the sentence whereupon the comprising was deduced; and he compearing and proponing sundry exceptions; this being omitted, it was found, that he could not reduce thereupon: but the Lords declared, that in the redeeming of the comprised lands, defalcation should be made, of as much of the money, for which the lands were comprised, as the sum of the discharge extended to. Another reason of reduction bearing, That it was agreed by contract betwixt the parties, that if any of them should annailzie any part of the sums whereto they had right, to any person, that the annailzier should lose all right that he had thereto; and the L. Lempitlaw having sold his right, which was sufficiently qualified; absolvitor was also given from this reason, because the Lords found, that this failzie against the contract by making of the alienation, ought not to import the conclusion desired; and convened on by both parties in the contract, except the pursuer could qualify some prejudice sustained by him, through making the alienation contrary to the contract; which prejudice not being qualified, and the reducer sustaining no hurt thereby, the Lords found the failzie ought not to be sustained, to pursue a reduction thereon, but assoilzied there from, albeit it was so expressly convened betwixt the parties.
Act. Stuart & Lawtie.Alt. Nicolson.Clerk, Hay.
Fol. Dic. v. 1. p. 7. Durie, p. 491.
