The confirmation first expede thro’ the seals was found preferable, though the date of the charters was the same.
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Bruce of Newton having infeft Clackmannan for relief of his cautionries for several of Newton's creditors, and having thereafter infeft the Earl of Wigton for his relief as cautioner to other creditors, both infeftments are confirmed by signatures past at the same time, whereupon both do now compete. It was alleged for the creditors, to whom Clackmannan was cautioner. That his infeftment ought to be preferred, because his base infeftment is prior, his signature of confirmation is simul; and it is first past the seal by a month's space, as it appears by the attest of the keeper of the seals to the charter, as use is. It was answered for Wigton, That both infeftments being base, without possession, the confirmation only, by which they become public, makes them effectual rights, so that both their confirmations, past of the same date, must come in pari passu; and no respect ought to be had to the attest by the keeper of the seal, otherways it should be in his power to prefer and postpone as he pleases, for which he hath no commission; and though his oath was taken, he is but one witness. It was replied, That the seal only perfects the confirmation, and is in place of the King's subscription; and albeit the dates be insert in charters, according as the signatures pass, yet it is not the signature that gives the right, otherwise no infeftment by confirmation could be known or secured, but a naked signature would be preferred to a posterior sealed charter. Neither is there any hazard of the collusion of the keeper of the seal; because, when a signature passeth the seals, it is to be found recorded at the Privy and Great Seals in the Chancellary, and there is a minute kept of all the sealings of charters.
The Lords found the first expede confirmation through the seals preferable, although the date of the charters were the same; and that the attest of the sealer was sufficient, unless it were controuled by the registers, or that the other party had craved to pass his signature as soon, and taken instruments upon the refusal, and collusion of the keeper of the registers and seals.
