Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Birnie v. Crawfurd
1673.
June.
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Birnie and Crawfurd competing in a double poinding for a sum which both of them had arrested, Crawfurd craved to be preferred, in regard he had arrested first. (Vide Cavalcanum de Testibus, p. 39, et 67, et 68.) Birnie contended, that though he was posterior in arresting, yet he had prevened the other in diligence, and was pursuing to make forthcoming; whereas Crawfurd had done nothing on his arrestment.
Replied, that, beside his arrestment, he had also an assignation to the same sum from the creditor in it, who was their common debtor, and that he conjoined his two titles. (Infra No. 492, § 6.) [July, 1676.]
Duplied, his assignation was of no value, being after the arrestment laid on by the duplier; and two imperfect and invalid titles could never be joined in prejudice of him who had a right, and had done diligence, preferable to any of them separatim.
The Lords preferred him who had the two titles, though apart they were lame, ut quæ non prosunt singula, multa juvant.
Many doubt if this was well decided, seeing as M'K. in his pleadings, page 61, has it, weak arguments conjoined can, by their mutual assistance, never astruct a right, no more than many cyphers can make a number, or many uncertainties a certainty. (Yet many beams of light may make a perfect light.) Omnino, vide Taylor in his Ductor Dubitantium, lib. 1, cap. 4, p. 91.
Facit lex unica, C. Qui numero tutelarum se excusant, l. 15, par. 11, D. De excusationibus tutorum. Vide tamen, l. 5 et 6, C. de probationibus; from which commentators infer the conjunction of divers sorts of probation. Vide Vinnium Selectarum Quæst. 44; L. 28, p. 3, D. ex quibus causis majores; l. 27, C. de testamentis, cap. 13, extra, De probationibus; cap. ultimo, extra, De successionibus ab intestato.
