Effect of diligence. - Effect of partial payment recovered before diligence or bankruptcy.
Campbell v. -
Date: 22 December 1671 Case No. No 19.
An apprising may be restricted.
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In a competition betwixt the Heirs of George Campbell, in the Canongate, and , who both had apprised a tenement of land in Leith, called the Tower of Babylon, which being within year and day, were found to come in pari passu, and the matter remitted to an auditor, before whom it was alleged, for one of the apprisers, That the act betwixt debtor and creditor excepts annualrents constituted by infeftment, which, and apprisings following thereupon, come not in pari passu with other apprisings; so that, as to the annualrents preceding the apprising, and which are constituted by an infeftment of annualrent, they must be satisfied out of the mails and duties prima loco;—it was answered, That if the appriser had adhered to his infeftment of annualrent, and apprised for the bygones, by a poinding of the ground, he would have been preferred; but now, having used requisition, and proceeded upon the personal obligement, for payment of annualrent, and apprised for the principal sum, and annualrent together, he cannot have that preference; for the requisition is a passing from the infeftment of annualrent; and though he may pass from the requisition, and return to his annualrent, yet then he passes from the apprising for the principal sum; for he cannot pass from the requisition, in relation to the bygone annualrents, and adhere to it in relation to the principal sum, seeing one infeftment is the security for both. It was replied, That he might restrict his apprising, and declare that he made use of the requisition, only in so far as Concerned the principal sum, and annualrents, after the apprising.
Which the Lords sustained; and preferred him for the annualrents preceding the apprising.
