What diligence sufficient. - Effect of partial interruption.
Lord Balmerino v. Hamilton
Date: 21 June 1671 Case No. No 413.
An infeftment of annualrent reaching two tenements, diligence done against the one, or payment made by the debtor, saves prescription as to both; and this, although the annualrent was constituted upon the two tenements by two different sasines.
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In a poinding of the ground at Balmerino's instance against Hamilton, upon an infeftment of an annualrent of L. 40 out of a tenement of land in Leith, wherein Hamilton was infeft as heritor; it was alleged, No poinding of that tenement, because the defender, and his authors, who were singular successors, were infeft therein, and in possession thereof by the space of 40 years free of any such burdens or any diligence done thereupon. It was replied, That the foresaid annualrent being constituted by the pursuer and defender's author, who was heritor of that, and another tenement belonging to him by infeftments given upon resignations in the superior's hands to the pursuer's author, who had obtained payment either from the granter, or by decreets out of the other tenement, it did interrupt prescription, and the annualrenter's right did remain entire as to both the tenements, though he was only paid out of one of them. The Lords did sustain the poinding, and found, that a right of annualrent being jus indivisible, and granted out of two distinct baronies, or tenements of lands, the payment of the annualrenter by the granter himself, without any diligence, did instruct possession, and quocunque tempore the annualrenter might pursue a poinding, unless prescription could be alleged upon that ground, that neither payment was made, nor diligence done by the space of 40 years.
Fol. Dic. v. 2. p. 129. Gosford, MS. p. 173.
*** Stair's report of this case is No 6. p. 3350., voce Debtor and Creditor.
