Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
Boutchart and Paterson v. William Clerk's Heirs and Creditors
Date: 10 June 1701
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In a process of extinction of a comprising, pursued by one Boutchart and Paterson, his assignee, against the heirs and creditors of Mr William Clerk, advocate, concluding a count and reckoning for his intromissions with the maills and duties of the apprised lands, and offering to pay in the superplus that in the event shall not be found satisfied by his intromission; and it being now contended that the legal was expired during the dependence, it fell to be considered by the Lords, If a declarator of satisfaction and extinction within the legal, containing a conclusion of count and reckoning, pursued by a debtor against his creditor apprising, be equivalent to an order of redemption for keeping the legal open. Some alleged, That a premonition, by way of instrument, with a consignation, and a summons of declarator raised thereon, was the only habile legal way to stop the expiration of a legal of a comprising or adjudication; and such solemnities must be observed in terminis specifias, and cannot be done per equipollens. Others thought any thing that intimated the debtor's intention to redeem and satisfy his creditor, was sufficient, in materia odiosa, to carry away lands by apprisings; and that his pursuing a count and reckoning was a provocatio in judicium sufficient to stop the currency of the legal. A third said, if, by the event, his intromission extended to his debt, then there was no doubt but the diligence was extinct; but if there was any part yet remaining unpaid, the apprising now expired stood good for it, and was now irredeemable, unless an order had been used within the legal. Stair, tit. Wadsets, inclines to the second, that such a summons is equivalent to a formal order, and cites Dury, 2d July 1625, Kincaid against Haliburton; but the Lords did not at this time decide the point.
