Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Cornelius Inglis
v.
His Tenants

Date: 22 December 1664

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Mr Cornelius Inglis, being infeft in several lands and tenements about Kingsbarns, upon a comprising, pursues removing.

It was alleged by Mr Roger Hoge, who compeared for his interest, No removing; because they were his tenants, by payment of maill and duty, several years before the warnings; who have right to the said lands by apprising, and had charged the superior.

To which it was answered, Non relevat, unless the defender will say he stands infeft, and, by virtue thereof, in possession, by uplifting the maills and duties; in regard an apprising and charge against the superior is not sufficient interest to pursue a real action. Neither can it be sustained, by way of defence, to impede a removing, at the pursuer's instance, against his own tenants, who stand infeft; especially the superior having suspended the charge, and Mr Roger having used no diligence for discussing thereof.

In this interlocutor the Lords were divided, and thought it disputable, whether a comprising, with a charge against the superior, and seven years' possession, were sufficient to maintain the tenant, in a removing, against one that stands infeft, and, therefore, it was not decided: but recommended to the Lord President to agree the parties.

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