What Sort of Singular Successors entitled to be received by the Superior? - Whether the Seller or Purchaser bound to enter?
Lord Borthwick, &C v. Hilstain, &C
Date: 22 July 1628 Case No. No. 35.
Found in conformity with the above.
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In a suspension, Lord Borthwick and Walter Hay against Hilstain and Smith, where two creditors had comprised the lands of their common debtor, and had charged the Lord Borthwick, superior of the lands, to enter them both, and the creditor who was prior in comprising and diligence, alleging, that he only ought to be received by the superior, in respect of his said diligence, and the other contending, that the superior ought to receive him also, the Lords found, That the superior ought to receive both the comprisers, without prejudice to them, in their own time and place, to dispute which of their rights should be preferred to others; for the Lords declared, that the superior's receiving of them both at one time, now conform to this ordinance, should not prejudge any of the comprisers in the just advantage which the priority of diligence might give to the one before the other; which priority should not be prejudged by this receiving of the last as soon in his entry by the superior as the first; and as concerning the duty to be paid to the superior, because it was questioned if both the comprisers, and each one of them, should pay a year's duty of the land to the superior, or that one year's duty should only be paid, and by which of the two the same should be paid, the Lords decided not that point that day; but thereafter, upon the 26th of July, 1628, in this same cause, the point being heard and considered, they found, that the superior ought to have one year's duty from all the comprisers, or any of them who most trusted to his comprising; which year's duty, so to be paid by the compriser to the superior, the Lords found, in the like cases in all time coming, should be repaid again to the payer, if his right shall be rejected, and another preferred to him, he who shall be preferred, and by whom he shall be excluded, shall reimburse him.
Act. Hay.Clerk, Gibson.
Fol. Dic. v. p. 409. Durie, p. 392.
