Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Comprisings
1673.
June.
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In an action for maills and duties at the instance of a compriser, it fell to be contended, that a first compriser having arrested, and by virtue thereof obtained payment of his annualrents, he was bound by the act of Parliament 1661 (declaring second apprisers within year and day to come pari passu, and to be reputed a part of the first comprising, as if but one apprising had been led for all their sums,) to communicate proportionally what he had so got to the said apprisers within year and day. (And yet the intent of the act of Parliament 1661 may be eluded easily, if their diligences were proper.)
It was not decided. Only it seems he ought to communicate nothing, save what directly and immediately flows from his comprising. What if he has attained payment, in whole or in part, by virtue of some other right he was necessitated to acquire, or by an inhibition he had served on his bond, or by confirming executor creditor? Sure posterior creditors apprisers should claim no share in that as common; nam sibi vigilavit; meliorem suam conditionem fecit; jus civile vigilantibus scriptum est; non revocatur id quod precepit; L. 24, p. 1, D. Quæ in fraudem creditorum facta sunt, ut restituantur.
