Effect of diligence. - Effect of partial payment recovered before diligence or bankruptcy.
Hamilton v. Wilson
Date: 29 January 1635 Case No. No 15.
An apprising was deduced, not upon the real right of infeftment of annualrent, but upon the personal obligation after requisition. This was not found a real extinction of the infeftment.
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In a double poinding betwixt Sir James Hamilton of Broomhill, and one Wilson, against whom the Tenants of Lauder had suspended upon double poinding, Wilson claimed the mails of the lands from the Tenants, by virtue of his comprising; and the other alleging, That in the first end of the farms he ought to be answered of his annualrent prima loco, seeing he was infeft therein long before the comprising; and the compriser answering; That he had only right to claim the duties of the lands as heritor, and the annualrenter could not go therein betwixt him and the possessors; and for his annualrent he had his action safe to him, to poind or comprise the ground therefor;—the Lords preferred the annualrenter to the compriser, for answering of the annualrent in the first end of the farms addebted by the Tenants, and found that the compriser had no right but to the superplus. And it being further alleged, That the annualrenter, before this year's term of payment of these duties controverted, had made requisition to his debtor for payment of his principal sum, whereupon the annualrent foresaid was redeemable, whereby he could not come back again to seek his annualrent out of the land having made the sum moveable; this allegeance was repelled; for it was found, that, notwithstanding of the requisition, he might cloth himself with his infeftment, and might pass from the requisition, so long as the sum was neither paid by the debtor, nor yet prepared and Consigned, or offered to this party, conform to the requisition.
Alt. Gilmour.
Fol. Dic. v. 2. p. 355. Durie, p. 745.
