The expiry of an apprising found interrupted by an order of redemption.
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The Lady Torwoodhead having gotten aliment modified to her by the Lords of Council of 600 merks yearly; and, for surety of the same, having gotten the gift of her husband's liferent escheat, did pursue the Tenants for mails and duties.
It was alleged for Florence Gairner, That he had right to the lands libelled and mails and duties of the same by comprisings and infeftments thereupon expired.
It was answered, That the mails and duties of the lands exceed the annualrents of the sums contained in the comprising; and, by the act of Parliament 1661, for ordering the payment of debts betwixt creditor and creditor, where the lands Comprised exceed the annualrents of the sums contained in the comprising, the comprisers are restricted to the possession of such of the lands during the legal as the Lords of Session should think just; and that the expiring of the said Florence's comprisings was interrupted by an order used by Edward Ruthven, son to the Lord Forrester.
It was answered for Gairner, That the Lord Forrester had no right to the reversion of Torwoodhead's lands, so that no order used by him, as to these lands, could be valid to interrupt the said comprising; and the said order neither was, nor could be declared.
The Lords, in respect the Lord Forrester being principal, and his brother Torwoodhead cautioner, both their lands were comprised for the same debt, and that the principal may satisfy the debt, and extinguish the comprising as to both his own and the cautioner's lands, they found, that the said order did interrupt the comprising as to both.
This appears to be heard; 1mo, Because the act of Parliament indulges the favour foresaid to the debtors themselves, upon the conditions therein-mentioned, viz. That they should ratify the compriser's possession, and deliver the evidents, and the same cannot be entended to donatars; 2do, A comprising cannot be interrupted, but either by payment and actual intromission, or by using and declaring an order of redemption; until which be done, the comprising cannot be thought to be unexpired.
