A decree of apprising is a complete diligence, as to mails and duties, being a legal assignation, and needing no intimation; so that there can be no mota. On this principle, in opposition to No 9. p. 2763 an appriser of an infeftment of annualrent was preferred to a posterior arrester, tho' the competition was nine years after the decree, and the appriser had done no diligence.
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The Earl of Leven being debtor to Lamberton in 40,000 merks, and having infeft him in an annualrent out of his lands in security thereof, Mr John Fairholm did, upon a debt due by Lamberton, apprise the foresaid heritable bond and annualrent, which was holden of the Earl of Leven himself, who was charged upon the apprising, but unwarrantably, to infeft Fairholm in the lands, whereas the annualrent only was apprised, and the charge should have been to infeft Fairholm in the annualrent; thereafter Fairholm did arrest the bygone annualrents in the Earl of Leven's hands, and after all did, upon a decreet against Lamberton, arrest the bygone rents in Leven's hands; and Lamberton's liferent of the annualrent having fallen, by his being year and day at the horn, the Justice Clerk, as donatar to the liferent, and as arrester competing with Fairholm, did allege that Fairholm's apprising being an incomplete diligence, and no infeftment nor valid charge thereon, and having lain over so many years, the arrester must be preferred; for which he adduced a practique observed by Durie, 14th February 1623, Saltcoats contra Brown, No 9. p. 2763. where it was so found; and albeit Fairholm be the prior arrester, yet he hath done no diligence upon his arrestment, whereas the Justice Clerk hath obtained decreet; and, as donatar to the liferent escheat, he is preferable for years after the rebellion; because the liferent escheat falling before any infeftment, or charge on the apprising, which was not used within year and day, the liferent excludes the appriser.
The Lords found the apprising preferable to the posterior arrestment, though no legal diligence was done thereon for the space of nine years thereafter, in respect the apprising, being a judicial assignation, required no intimation, and being prior, it is preferable; and they did not respect that single practique, the constant custom being contrary; but found the liferent escheat preferable to the anterior apprising, being without infeftment or charge as to the years after the rebellion, and preferred the appriser as to years preceding.
