Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Mark Hamilton
v.
Brown

Date: 31 January 1628

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In an action for the mails and duties of a house, betwixt Mark Hamilton and Brown,—the Lords preferred the defender to the pursuer, in the right of the mails acclaimed; the defender's right being a disposition of the land by the heritor thereof, for satisfaction of a sum adebted to him by the said heritor, contained in a contract of marriage; upon the which disposition, for the cause foresaid, the defender was infeft in the land upon the morn after the said disposition: albeit the pursuer replied, that he had comprised the lands from the said heritor, their common author, for a cause onerous; the denunciation of which comprising wras made upon that same day upon which the party had acquired the said disposition, and which denunciation preceded the said sasine; and so his denunciation, being before his real right of sasine, and the same being a deed necessary, and the other being a voluntary deed done by the debtor, ought not to prejudge his lawful and more allowable diligence; but he alleged he ought to be preferred. Which was repelled, as said is, and the defender preferred.

Hay, Clerk.

Vid. 25th March 1628, Blackburn; 17th December 1627, Lawder; 22d March 1626, Erskine; 4th Dec 1628, Logan against Hunter.

Page 337.