A compriser having charged the superior before another's comprising was led, and the superior having suspended the first, and freely entered the second with-out a charge, the first was, nevertheless, preferred, in respect of his diligence, altho' the other was infeft and three years in possession.
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Two comprisers being infeft in their debtor's lands, and the tenant who was pursued by them both for the duties thereof, suspending upon double poinding, wherein the two comprisers being heard to dispute upon their rights, infeftments and comprisings, and who of them should be preferred to the other; The Lords preferred the first compriser, albeit last infeft by the superior, to the last compriser, who was first infeft, although he who was first infeft, was by virtue of his right in possession of the lands; in respect not only he, who was last infeft, was the first compriser, but also by reason that before this other party's comprising was perfected, he had charged the superior to infeft him, and which charges he had suspended, and thereby delayed the charger, and gave in the mean time a voluntary charter to the posterior Compriser; which voluntary deed done after the first compriser's diligence, and no possession obtained thereon, The Lords found, ought not to prejudge the prior compriser's lawful diligence; but they drew back his said posterior infeftment, to the time of his said prior diligence, and preferred him therein to the other party.
Clerk, Gibson.
Fol. Dic. v. 1. p. 153. Durie, p. 616.*** Spottiswood reports the same case, giving the defender the name of Davidson:
In an action for mails and duties sought by two comprisers, whereof the one had comprised and charged the superior before the other's comprising, yet the superior having suspended the first compriser, and holden him off three years, whereas he gave infeftment to the last freely without a charge, who by virtue thereof was in possession three years before the first got infeftment; The Lords preferred the first compriser in respect of his diligence, notwithstanding of the other's infeftment, and three years possession.
