Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Forrest
v.
John Callender

1687. January.

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Mr Alexander Higgins having disponed his lands of Craigforth to John Callender, whereupon resignation was made in exchequer, after one Forrest had been infeft base in an annualrent out of these lands; Forrest raised a poinding of the ground, and, before decreet thereon, John Callender presented a signature to the exchequer, and infeftment followed after the decreet of poinding, which was obtained immediately after the first term of payment of annualrent. In a competition betwixt Callender and Forrest,—alleged for Callender, That he having presented a signature before the other's decreet, the infeftment ought to be drawn back to operate from the date of presenting the signature, seeing he could do no diligence by a charge against the king; and applications to the exchequer (which is a public judicatory,) could not be disappointed, more than a prior action before the Lords by a posterior first consummated before an inferior judge. Answered, Whatever might be pretended as to the presenting signatures upon legal diligences, yet any superior may not only delay, but refuse voluntary rights; 2. By constant practice, the first infeftment upon the last signature is preferable; 3. A right may be rendered public, either by confirmation or possession, or decreet of declarator, or poinding of the ground, according to the nature of the right; and Forrest not only raised his summons, (which had been sufficient,) but recovered decreet before Callender's infeftment. The Lords preferred Forrest, as having the first public right. And, in a competition here, between two processes of poinding the ground, the Lords preferred the first citation. Vide No. 608, [John Callender against Creditors of Craigforth, February 1687.]

Page 169, No. 606.