Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent Apprisings
1676.
February.
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I heard it questioned, if the first apprising can redeem the second and pay it, as the second appriser can redeem the first. Videtur quod sic: for the first compriser has all the right was standing in the debtor's person; ergo, he may purge and redeem as the debtor might have done. But it seems more consonant to the analogy of law that he cannot, for he could not comprise the legal of the posterior apprising, because the time of the leading of his comprising it was not then in being, it was a nonens. Vide Dury, 18th November, 1624, Kincaid and Haliburton.
Cujace, ad Titulum C. Etiam ob chirographariam pecuniam pignus tenere posse, affirms from Accursius, and the laws there cited, that primus creditor potest offerre debitum secundo. Vide February, 1680.
To the argument for the first opinion it may be answered, he has all the right was standing in his debtor's person: but, ita est, this was not a right competent to the debtor then, because the second comprising was not then led, and so could not be carried with the first apprising. It may be replied, that the debtor had the power to pay that debt, whether personal or real, as personally bound for it, (if so be it was contracted before the denunciation of the first comprising,) ergo idem jus competet to the first appraiser. 2do, All right that accresees to the debtor becomes the first compriser's; ergo, ex post facto, this posterior right of reversion becomes his also. It may be duplied, that a comprising being a real right, will not draw, carry, nor affect the power and faculty to pay personal sums, seeing that is moveable. And for the accrescing, since all the favour indulged by the law to second comprisers that are not within year and day, (and before the act of Parliament 1661, whether he was within year and day or not,) is allenarly the right of redeeming the prior apprisings; why shall this be communicated to one who has far more considerable benefits, viz. the full right of property if the legal expire? And yet I cannot see how the second appriscr should refuse payment; that purging his damage and interest, cum omni causa.
Vide supra, No. 154, [February 25, 1671,] where it is subtilely debated, if a liferent can be comprised, or an apprising not yet led be disponed. See Hope's Compend. cap. 10, Of Comprisings, pagina 49.
