Scottish Court of Session Decisions

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

The Earl of Galloway
v.
Harie Gordon

Date: 29 March 1636

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The Earl of Galloway comprises a mill from ——, but takes no infeftment, nor yet charges the superior to infeft him, for the space of five years after the comprising. His debtor's son, after the comprising, dispones the mill to Harie Gordon of Kilsture, who obtains possession, and uplifts the duties from the tenants by the space of two or three years. In the meantime the Earl of Galloway pursues the tenants to pay their duties to him, and to misken Harie Gordon for the crop 1635. They suspend upon double poinding. Harie Gordon alleges, That he ought to be answered, as having best right, by virtue of his infeftment clad with divers years' possession. The Earl of Galloway alleges him to have best right, as having comprised the mill before the other was infeft; and the common debtor could make no voluntary disposition in prejudice of him who had comprised the lands before; by the which the disponer was denuded of all right that was in his person. The Lords preferred the infeftment clad with possession to the comprising whereupon no infeftment nor charge to the superior had followed by the space of five years.

2d MS. Page 37.