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Sir William Dick having apprised some lands, holden of the town of Irving, and charged the Magistrates to receive him; the Laird of Corsbie having comprised the same lands, some days after, was received by the town, the next day after Sir William's charge; and about a month after, Sir William was also infeft. Clerkingtoun having right from Sir William, pursues Corsbie, first, for mails and duties; Corsbie was found to have the benefit of a possessory judgment, by seven years possession, and thereupon was assoilzied. Now Clerkingtoun insists in a reduction on this reason, that he having first apprised, and charged the superior, they colluded with the defender, and gave him a voluntary infeftment, the next day after his charge; and therefore his infeftment, though after, ought to be drawn back to his charge and diligence, and he preferred. The defender answered, That the reason ought to be repelled, because the weight of the reason is the pursuer's diligence, and the superior's collusion, which hold not, because all the diligence Sir William Dick did, was the first charge upon the letters of four forms which bear only with certification, that in case of disobedience, letters of horning would be direct simpliciter, and this is no more than a premonition, and put no obligation upon the superior, until the second charge, which was homing; neither did Sir William ever insist any further than the first requisition.
The Lords found that the first charge was sufficient, in this case, where the superior gave an infeftment before the expiring of the first charge, and before the second charge could be given, and thereby that a superior might prefer an appriser, though posterior to a prior, do what diligence the prior could. But they found, that seeing Sir William Dick had been silent, until his legal reversion was expired, and had not challenged the defender, who was in possession, and thereby had excluded him from the benefit of redemption competent to him, if he had been found to be but the second right within the legal; therefore the Lords found Sir William Dick's apprising redeemable by Corsbie, with in year and day, after the sentence.
