Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Sir Henry Home v. The Creditors of Kello and Sir Alexander Home
Date: 12 December 1666 Case No. No 7.
Apprisings led before 1652, came not in pari passu with those led before, though within year and day.
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Sir Henry Home having apprised the lands of Kello, before the year 1652, pursues the tenants for mails and duties. Compearance is made for other creditors apprisers, who alleged they ought to come in with him pari passu, by the late act between creditor and debtor; because the apprisings being since the year 1652, were within a year of his apprisings, being effectual by infeftment, or charge.—It was answered, That the act of Parliament was only in relation to comprisings, both being since the year 1652; and the pursuer's apprising being led before, falls not within the same.—It was answered, That the act of Parliament, in that clause thereof, in the beginning, mentions expressly, that comprisings led since 1652, shall come in pari passu with other apprisings; but does not express, whether these other apprisings are since 1652; but in that is general, and the reason of the law is also general, and extensive to this case.—It was answered, That the posterior part of that same clause, clears that point, both in relation to the apprisings, in whose favours, and against which the law is introduced, viz. That by the clause is only meant, the apprisings led since 1652, shall come in pari passu; which must both comprehend those that come in, and those with whom they come in.
The Lords repelled the allegeance, quoad other comprisings, and found, That their comprisings could not come in with the pursuer, he having apprised before the year 1652, and charged before their apprisings.
Fol. Dic. v. 1. p. 17. Stair, v. 1. p. 411.*** Dirleton states the same case thus:
In a process betwixt Henry Home, and the donator of the forefaulture of John Home of Kello, and certain others his creditors; it was found, That a comprising being deduced before January 1652, and being the first effectual comprising, ought to be preferred to the posterior comprisings; so that they should not come in together pari passu: In respect, though they were within year and day of the compleating, and the making effectual the first comprising by infeftment or diligence, yet they were not within year and day of the deducing the said comprising; and the said comprising being before the year 1652, doth not fall under the compass of the act of Parliament concerning debtor and creditor; which brings in pari passu comprisings led since January 1652; and being correctoria juris communis, ought not to be extended.
