Scottish Court of Session Decisions

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

Lord Rentoun, Justice-Clerk,
v.
The Laird of Craigihall

Date: 9 February 1671

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In a double poinding, raised at the Countess of Leven's instance, against the Justice-Clerk and Craigihall;—It was alleged for the Justice-Clerk, That he ought to be preferred; because he had arrested and obtained a decreet to make forthcoming, against the Countess, of all sums addebted by her to the Laird of Lamertoun; whereas Craigihall had only arrested, and led a comprising against the lands of Eastnisbet, which were given in wadset and security to Lamertoun, by the Earl of Leven; but was never infeft, nor had done any diligence upon the comprising.

It was alleged for Craigihall, That he ought to be preferred; because his arrestment was prior, and he was in cursu to make forthcoming against the Earl of Leven, before he died; and, upon a bill, was reponed against the Justice-Clerk's decreet to make forthcoming: And for his comprising, albeit he was neither infeft, nor had done diligence, yet, as to all subsequent years' duties, he ought to be preferred, because a naked comprising is a sufficient title to pursue for maills and duties.

The Lords did prefer Craigihall, not only upon his arrestment, but upon his comprising, as to all subsequent years; and found, that a compriser was not obliged in law to do diligence, but that a comprising is a sufficient title against all others who have not a better right.

Thereafter the Justice-Clerk did allege, That he was donatar to the single and liferent escheat of the Laird of Lamertoun, and had thereupon obtained a general declarator, and intented a special action, against the Countess. But this right was reserved to be debated thereafter.

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