Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

John Boswell of Pittedie
v.
The Laird of Coldingknows

Date: 13 March 1628

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Next compeared John Boswell of Pittedie, and produced a sasine of the same lands upon a comprising led at his instance against Coldingknows, and alleged, No declarator of Coldingknows's liferent of these lands, because, long before the pursuer's gift, Coldingknows was denuded of these lands by comprising and infeftment following thereupon made to this Pittedie. Replied, The sasine produced cannot be obtruded to the pursuer's gift, because Pittedie is only seised in these lands, holding of the king, who was not superior to Coldingknows at that time; but, on the contrary, the Earl of Marr, from whom the pursuer's gift proceeds, was infeft in the superiority by the king, and so Pittedie's infeftment not holding of the right superior, his sasine cannot exclude the pursuer. Duplied, That Coldingknows, standing infeft, holding of the king the time of his comprising, he was in optima fide to comprise the lands from him to be holden of the same superior; and there was no necessity for him to kenn the Earl of Marr, seeing Coldingknows had taken no new infeftment to be holden of the Earl. The Lords repelled the allegeance proponed for Pittedie, in respect of the reply. See the preceding Case.

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