Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Clackmannan's Creditors competing
Date: 6 December 1678
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In the competition between the creditors of Clackmannan, the Lords did not indeed decide it, but inclined to find, that their equal presenting of their signatures of confirmation of their base infeftments to the Exchequer on the same day that Alexander Miln presented his, did not bring them in pari passu with him, unless they had taken instruments upon their presenting thereof judicially: which difference seems very strange, and not to be required by 66th Act Parl. 1578, declaring, that the King and his compositors ought not to deny confirmation to any that seek it. Yet Hope, in his Min. Pract. til. 10, Of Apprys-ings, §11, seems to require taking of instruments. But here they were so boasted and over-awed by the Duke of Lauderdale's presence, who owned Alexander Miln, that they durst scarce take instruments.
In 1673, in the case of Hugh Sinclair of Binny and his Creditors, the Lords found the presenting of a signature to the Exchequer equivalent to a charge given to another superior.
It was likewise sustained to Bruce of Powfouls, who was cautioner in a great many debts for Clackmannan, that he was infeft about the same time with Miln, and raised his summons for poinding the ground and maills and duties before the Lords, and executed them that same day that Miln obtained his decreet before the Sheriff of Clackmannan. This diligence was sustained by the Lords to bring in Powfoulls pari passu with Alexander Miln.
