Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Macdoual of Freugh v. The Marquis of Douglas
Date: 30 November 1697
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Freugh being a creditor to the late Viscount of Dundee, on the account of a composition paid to him for his forfeiture; and the Marquis, being now donatar to the said Viscount's forfeiture, he opposed Freugh's process against the tenants Alleging, By the 24th Act, 1696, the donatar to forfeited persons may pursue the creditors before the Lords, and set off as much land to them as offeirs to their respective sums; and which he was willing to do. Answered for Freugh,—The Act of Parliament bore this farther clause, That it should be but prejudice to the creditors, their rights, diligences, and possessions, till the said allocation were made. Replied,—Freugh was but in attinenda possessione, and so not in the case of that salvo. Duplied,—Though he had not obtained the natural possession, yet he had a decreet of poinding the ground, which was a civil possession, and sufficient in law; and that the Marquis's summons for allocation was but new’ raised, and ought not to be incidenter taken in; for, though the forfeited parties had summary process, yet the donatar had no such privilege.
The Lords preferred Freugh medio tempore, and refused to take in the Marquis's process summarily; but referred him to go on with his allocation via ordinaria.
