Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Agnes Simpson
v.
James Watson

Date: 1 February 1670

Click here to view a pdf copy of this documet : PDF Copy

The said Agnes being infeft in annualrent of £40, in anno 1649; and having obtained decreet for poinding of the ground, in anno 1657: In a suspension of multiplepoinding, raised by the tenants, wherein Watson was lawfully summoned, but not compearing, the said Agnes was ordained to be answered and obeyed. Thereafter, in anno 1668, there was a new suspension of double poinding, raised in name of the same tenants, wherein Watson did compear and produce a public infeftment upon a comprising, in anno 1653, and offered to prove possession conform; and thereupon craved to be preferred to the said Agnes, whose infeftment was base, and not clad with possession until the year 1657.

It was alleged for the said Agnes, That she having a decreet of preference standing, whereof there was never any reduction intented, it ought to maintain her possession, aye and while it [was not]] reduced; conform to the 3d Act, 9th Parliament, K. Ja. VI. To this it was answered for Watson, That, by the said Act of Parliament, decreets of double poinding being only for any thing that was then shown, and against parties not compearing, it was declared that they might be heard in secunda instantia; so that, there being a new suspension raised in name of the tenants, there was no necessity of a reduction, seeing both parties might here dispute their rights.

The Lords, having considered the Act of Parliament, and that the said Agnes, the liferenter, would be cut off of the annualrent, since the date of the suspension, by an expired comprising; and that the suspension was only raised in name of the tenants; whereas the Act of Parliament ordains the party, against whom the decreet of preference was gotten, that he should be pursuer in secunda instantia: Therefore they found the letters orderly proceeded, reserving Watson's reduction as accords; and declared, they would do so in the like case thereafter.

Page 98.