An arrester of the mails and duties was preferred to another creditor who had a disposition of the lands for security of his debt, but without sasine, without possession (unless by holding of courts,) and without being assigned to mails and duties.
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In a double poinding betwixt the Lord Forrester, and one Castlelaw, where Castlelaw having arrested in the tenant's hands, the farms addebted by them to the Laird of Grange their master, for satisfying of a debt owing to Castlelaw by their master; and the Lord Forrester claiming to be preferred to the said Castlelaw, because before the arrestment, the lands, for most onerous causes, were disponed to him, conform whereto he is in possession, by holding of courts. Castlelaw answered, That the disposition ought to have no respect, no real right by charter and sasine having followed thereupon, and the disposition containing no clause whereby the farms controverted were assigned to him; likeas, notwithstanding thereof, the L. of Grange remained in possession of the lands, and uplifted the farms and duties thereof continually, whereby this year controverted, the farms arrested by him, ought to be paid to him, as pertaining to his debtor, and cannot be claimed by the Lord Forrester, by this disposition, which remained in nudis finibus obligationis without sasine, and he having done no legal diligence to recover payment thereby. The Lords repelled the Lord Forrester's allegeance, and preferred Castlelaw's allegeance, and admitted the same to his probation, that the debtor retained the real possession of the said lands, and that the Lord Forrester had no real possession of the lands, nor real right, and repelled the allegeance of anteriority; neither did they respect that part concerning his possession, qualified by holding of courts.
Act. Herriot.
Fol. Dic. v. 1. p. 179. Durie, p. 896.
