Effect of diligence. - Effect of partial payment recovered before diligence or bankruptcy.
Kay v. Fleming
Date: 15 June 1667 Case No. No 17.
In conformity with the above.
See No 19. infra.
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George Fleming having an infeftment of annualrent out of the lands of Cambo, and thereafter having comprised for his principal sum, it was found, in a double poinding and competition betwixt the said George and Gilbert Kay, another creditor of Cambo, that the said Gilbert should be preferred, in respect of the said Gilbert's infeftment in an annualrent. That decreet being suspended, Fleming craved to be preferred, in respect his right of annualrent was before Kay's right. It was answered, That this infeftment was extinct, and taken away by the comprising, and that he could not now have recourse to it, after a decreet of preference in foro contradictorio. It was replied, That decreets of double poinding preclude, as to bygones; but, as to the future, all are qualified, for any thing that was then seen.
The Lords were clear, that, notwithstanding of the comprising, he might have recourse to his former right; but the great question was, Whether decreets of poinding the ground, against a party compearing, did conclude him, so that he could not be heard against competent and omitted? which the Lords did not decide, but recommended to the reporter to settle the parties.
Clerk, Gibson.
Fol. Dic. v. 2. p. 355. Dirleton, No 83. p. 35.
