In a competition for mails and duties, a proof of possession before receiving a factory, was allowed, to do away the exception, that the possession bad been in consequence of the factory.
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Alexander Glasse and William Reid having a proper wadset of the lands of Alairtnenie, and John Haddin being also infeft in an annualrent forth thereof some days prior, compete for the mails and duties. Haddin alleged, That both infeftments being base from the same author, his infeftment of annualrent is preferable, because prior and first clad with possession. It was answered, Any possession he had was by a factory from Glasse. It was replied, That he offered to prove possession before that factory. It was duplied, That by Haddin's back-bond produced, bearing expressly that Glasse had had a valid right to the mails and duties of the lands, and that he was in possession thereof, and that Haddin had accepted a factory from him, and was obliged to compt to him for the mails and duties without any reservation of his own right; this was an unquestionable homologation and acknowledgment of the right, and equivalent to a ratification thereof.
The Lords found by the back-bond produced of the tenor foresaid, that Haddin had so, far acknowledged Reid and Glasse's right, that he could not quarrel it upon his own right; but he proponing that there was a reservation of his own right related to in the back-bond, the Lords found the same relevant, he proving possession before the other party, and before the factory.
