Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
L Cloverhill v. Moodie
Date: 22 January 1631 Case No. No 16.
A compriser may chase, whether to retain possession, or use personal diligence; but cannot take advantage of both.
See No 14.
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Cloverhill having comprised Moodie's lands for debt, and, neverthertheless, charging Moddie, by horning, to pay; and, upon that horning, having letters of caption; Moodie suspended, that the comprising ought to stay personal execution, or else, that the creditor should renounce the same. The Lords found, That, if the suspender would enter the charger to the possession of the lands comprised, to be bruiked by him, conform to the comprising, he ought to accept of the same, quo casu, no personal execution of caption ought to be granted against the debtor; albeit that the debtor's wife was infeft in the lands, and that the would not renounce her right, in favour of the compriser, which the Lords found the debtor could not be compelled to obtain; but, without her consent, found the comprising and possession sufficient; and, if the compriser would not accept of possession, that he ought eo casu, to renounce his comprising; for they found, That he ought not to keep both, viz. both to use caption, and to retain the possession and comprising; but that he had his choice of any one of them.
Act. ——.Alt. Gibson.Clerk, Gibson.
Fol. Dic. v. 1. p. 15. Durie, p. 557.
