Whether Reduction be requisite of Decrees Arbitral; - Of Legal Instruments; - Of Inhibitions; - Of a Deed executed by a Woman vestita viro; - Of a Decree of Preference in a Multiplepoinding.
James Watson v. Agnes Simson
Date: 1 February 1670 Case No. No 25.
A preferable creditor, though cited, neglecting to appear in a multiple-poinding another creditor obtained decree of preference. The preferable creditor raised a second suspension in the names of tenants. The Lords found, that it was not competent for him to quarrel the decree in this shape, but that he must necessarily insist in a reduction, according to act of Parliament 1584, c. 3.
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Agnes Simson being infeft by umquhile Alexander Stewart, her husband, in liferent in an annualrent of L. 40 yearly out of the lands of Lamellethem, she, in anno 1657, obtained a decreet of poinding of the ground, and the tenants having suspended on multiplepoinding, calling her, and James Watson, and others, wherein she is preferred in anno 1666, to her annualrent, for all years bygone and in time coming; in which decreet of multiplepoinding, Watson was absent. Watson making use of the names of the tenants, does raise a second suspension, anno 1668, wherein he is called on the one part, and the said Agnes Simson on the other part; which now coming to be discussed, it was alleged for the said James Watson, That the decreet of multiplepoinding against him, being in absence, he ought now to be heard upon his right, which is a public infeftment, long before the liferenter's base infeftment, or before it was clad with possession.—It was answered, That by the express act of Parliament anent double poindings, it is declared, that where parties are called, and compear not, but intent reduction of the decreet, that they shall never be heard against the decreet, or what the obtainers thereof have uplifted, unless they shew a sufficient cause of their absence; and that the obtainer of the decreet shall only be obliged to answer the other party in the second instance, according to the right which is then competent in his person, and the obtainer of the decreet shall have undoubted right to the mails and duties, ay and while he be warned at the instance of the other party, and better right shown, as is clear by the act of Parliament 1584, cap. 3.; so that Watson having yet raised no reduction of the decreet of multiplepoinding, preferring Simson, but only a second suspension in name of the tenants who suspended before, the said Agnes Simson, her decreet standing, and her right standing thereby, cannot be taken away, till in a reduction Watson produce a better right.—It was answered, That Watson does not contend for the years lifted by Simson, or for any years prior to his second suspension, albeit he does produce an unquestionable right, that would exclude her from all five, yet in regard of the act of Parliament, he is satisfied she be preferred for all years, till he in his second suspension produce his right; but alleges that he needs not raise reduction, because the act of Parliament does not require the same, but any complaint or process is thereby sufficient; neither does the ordinary course of law require a reduction of a decreet in absence, but a suspension albne is sufficient; and if he be put to a reduction, his unquestionable right will be excluded for all years bygone, and ay and while he raise his reduction and produce his right.—It was answered, That albeit the ordinary course requires not reduction of decreets in absence, yet the act of Parliament requires the same, because in the narrative it expressly mentions, that the party absent in the double poinding uses to raise reduction; and in the statutory part it mentions, that the other party's complaint shall be heard in the second instance, which is always understood to be reduction or declarator, and in a second suspension.
The Lords found, That reduction was necessary to take away a decreet of multiplepoinding in absence, and that a second suspension was not sufficient, and therefore preferred Simson, and found the letters orderly proceeded; but prejudice to Watson to raise his reduction for the duties in time coming.
