Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent pari passu preference of apprisings
Date: 28 January 1671
Click here to view a pdf copy of this documet : PDF Copy
It went to interlocutor, whether or no the third compriser, who has comprised within year and day of the second, but not of the first effectual comprising, will come in pari passu with the second as the second comes in pari passu with the first, conform to the act of Parliament? Though there may seem the same parity of reason, yet I think he will not. It may also be questioned from what time the year begins to run, whether from the date of the decreet of apprising, or of the infeftment rather, since it can scarce be called an effectual comprising till then; and so if a man shall have the benefit of the act of Parliament, who comprises within year and day from the date of the seasine, or if it must be from the date of the decreet, or of the allowance, as is found in a like case, 11th November, 1630, Laird of Limpitlaw. Item, it seems that if the denunciation of the second appriser be within year and day, it will be sufficient though the rest of it be without the year; for in favorabilibus (such as is the case of creditors contending damno vitando) actio incæpta habetur pro completa, et initium est spectandum. Vide infra, No. 196.
