Scottish Court of Session Decisions

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

The Laird of Arniston
v.
William Borthwick

1688. July.

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Arniston having, after citation in a summons of mails and duties, at his instance, upon two infeftments, infeft himself upon another bond, compearance was made for William Borthwick, who craved to be preferred to the pursuer's first infeftment, upon this ground, that they were base till a decreet of mails and duties; and there was a signature for confirmation of Borthwick's infeftment presented in exchequer before Arniston's process, although the confirmation was long posterior. Answered, The presenting of signatures is not considered, but the infeftment thereon. The Lords preferred Arniston for the first infeftments.

Thereafter the pursuer claimed preference likewise for the other infeftment. Answered, That the posterior infeftment could not be clothed by the prior citation. Replied, Borthwick's infeftment being no otherwise clothed than by his producing the same, and competing thereon in the pursuer's process, that same process must also clothe the pursuer's second infeftment, which is produced and debated on; at least, it must come in pari passu with Borthwick's. Duplied, In a competition of base infeftments, the first is always preferable; and the pursuer's second infeftment is posterior to Borthwick's. 2. Though a third party's competing is sustained as a publication of his right, 'tis not so where a pursuer competes in his own process. Triply, A pursuer producing a base right, and competing thereon with a third party, must be as effectual to clothe it with possession, as that third party's right would be clothed by his so doing. The Lords preferred Borthwick upon the first duply. And it was not known but that both infeftments were otherwise unclothed.

Page 170, No. 611.