Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

John Ferguson of Kilkerran
v.
Thomas Davidson;

and

John Ferguson of Kilkerran
v.
John Ferguson

1632. January 1, and December 1. 1632. January 31, and July —.

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Mr John Ferguson of Kilkerran being heritably infeft in certain lands in Carrick, holden of the Earl of Cassils, upon a comprising, charges the tenants for the maills and duties. The tenants suspend upon double poinding, being troubled by Mr John Ferguson on the one part, and Thomas Davidson on the other part. It was alleged by the said Thomas Davidson, That he ought to be answered and obeyed, because he had comprised the said lands, and had obtained himself infeft by the superior; and, by virtue thereof, was in possession thir four years. To the which it was first alleged by Mr John Ferguson, That he had first comprised the said lands, and charged the superior to infeft him, who having suspended, the compriser has obtained decreet against the superior; and so his diligence being prior, no voluntary infeftment, granted by the superior to the later compriser, can prejudge him that used the first diligence; neither ought the last appriser's possession to be respected, proceeding upon the voluntary deed of the superior. The Lords found the first compriser should be preferred.—1st January 1632.

Page 38.

Another suspension of double poinding being raised by the said tenants, (of Dalduff,) for crop 1631, against the said John Ferguson of Kilkerran on the one part, and John Ferguson, taylor, on the other part; Kilkerran alleges, That he ought to be answered, as having first comprised, and charged the superior to enter him; which is equivalent to a charter and seasine; and which must ever be drawn back to the time of the charge, which was prior to any diligence done by John Ferguson. To the which it was answered by the said John Ferguson, That he ought to be preferred, as having obtained the first infeftment upon a charge given to the superior; and, as to Kilkerran's charge, the same was suspended by the superior, and lies yet undiscussed; whereas John Ferguson obtained infeftment, and, by virtue thereof, obtained possession, by uplifting the maills and duties thir two last terms. The Lords preferred John Ferguson aye and while Kilkerran obtained the suspension discussed.—31st January 1532.

Thereafter the said suspension was discussed in July 1632, and the superior ordained to infeft the charger; after the which decreet of suspension, the action of double poinding being again called, the Lords ordained Kilkerran to be answered and obeyed.

Page 39.

The said Mr John Ferguson of Kilkerran,—having comprised the lands of Dalduff, holden of the Earl of Cassils, and having charged the said Earl to receive him vassal, who suspending; and having discussed the said suspension, and being willing to satisfy for his entry, yet the said sum not being paid to the superior, nor he infeft;—pursues Thomas Davidson of Pennieglen, who had comprised the said lands, and procured himself infeft; and, by virtue thereof, had uplifted the mails and duties of the lands comprised for the space of three years; to refund to him the said maills and duties, as he who had used the first diligence by comprising and charging the superior. It is excepted by the defender, That he ought not to refund the maills and duties intromitted with by him; because he had uplifted the same, by virtue of his infeftment; and, as yet, the pursuer was not infeft, in his own default, for not paying to the superior his due; and, since his charge, which was suspended, he has done no diligence to discuss the suspension, for the space of three or four years; in the which time the defender had good reason to uplift the maills and duties, by virtue of his infeftment. Which exception the Lords found relevant, quoad fructus perceptos.—1st December 1632.

Page 39.