Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Dr Hay
v.
Andrew Alexander

Date: 5 December 1673

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Doctor Hay, having apprised the lands of Artrochie, pursues Andrew Alexander, and others, the tenants, for maills and duties, who alleged Absolvitor, because he hath right to the lands by an apprising long anterior to the pursuer's apprysing. It was answered, That the pursuer,—having raised improbation and reduction against George Stuart, Marjory Jamison, and Andrew Alexander,—hath obtained certification against them, improving all their rights. And, albeit there be a reservation in favours of Andrew Alexander, yet certification being granted against George Stuart, doth exclude Andrew Alexander; in so far as George Stuart had apprised the lands in question before Andrew Alexander, and was infeft therein, and so had a right preferable to Andrew Alexander; so that the pursuer, having prevailed against George Stuart, who would have excluded Andrew Alexander, vincit vincentem. It was replied, That the common brocard hath many exceptions, and can never be extended to a certification, or an improbation, which doth only take away the right quarrelled, and communicates nothing thereof to the pursuer: and, it being but a certification, it hath no effect but as to the pursuer Dr Hay; so that George Stuart might yet make use thereof against Andrew Alexander. The Lords found, That the certification against George Stuart's prior apprising could not operate against Andrew Alexander's apprising, though posterior to George Stuart's.

Vol. II, Page 235.