Scottish Court of Session Decisions

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

Doctor Hay
v.
Andrew Alexander and Others

Date: 17 January 1674

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In a pursuit for maills and duties, at the instance of Doctor Hay, as being infeft in the lands of Artrochie, upon a comprising against Cone, an heritor thereof; compearance was made for Andrew Alexander, who alleged, That he ought to be preferred; because he had a right from one Neilson, who had a right to the said lands, from the common debtor, prior to the pursuer's.

It was replied, That the said Neilson's right, being apprised at the instance of George Stewart long before any right made to Alexander, the Doctor had reduced George Stewart's right, who was preferable to Alexander; and therefore, upon that principle of law, si vinco vincentem te vinco, the Doctor ought to be preferred to Alexander.

It was Duplied, That the reduction cannot militate against Alexander, because he was neither called nor compearing, and it was res inter alios acta; so the pursuer, having declared that right null, could not make use thereof as a standing valid right, wherein he could pretend no interest.

It was Triplied, That George Stewart, whose right was reduced, having fully denuded Neilson by a comprising long prior to Alexander's right flowing from Neilson, Doctor Hay, notwithstanding he had reduced the same, for not production of the bonds whereupon George Stewart had comprised, yet he might make use thereof against Alexander, who was not pursuer in that reduction.

The Lords did repel the allegeance and duply, in respect of the reply and triply; and found, That if Neilson was totally denuded by George Stewart, by an expired comprising before the right made to Alexander, that Doctor Hay ought to be preferred, Alexander's right being a non habente potestatem; but if his right was before the expiring of the legal reversion, that he ought to be preferred to the Doctor, as deriving right from Neilson, who had a prior right from the common debtor. Which was most just: but the great point thereby in debate was not decided, but passed over without decision, viz. that the Doctor, who had declared George Stewart's right void and null, could never found upon the same, as a standing right, against a third party, who was neither called nor compearing; which is against common reason and law; and, as that maxim holds, quod approbo non reprobo, so, a contrario, qui reprobat approbare non potest. And not being so found was very hard.

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