Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. II.

Arresters with Appriseres and Adjudgers.

Tenants of Dryup
v.
Sheriff of Forest

Date: 13 December 1627
Case No. No 9.

An appriser infeft, preferred to a subsequent arrester, although the appriser had suffered the debtor to retain possession for many years.

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In a double poinding, at the instance of the tenants, possessors of the lands of Dryup, who were distressed for the duties of the said lands by the Sheriff of Forest on the one part, who had comprised the said lands, for a just debt, from Scot of Dryup, and, conform to the comprising, was heritably infeft in the same lands divers years before the crop 1626, which was now drawn in question; and which duties of the crop now controverted he had arrested, and so craved to be answered of the samen; and, on the other part, they were craved by another creditor to the said Scot of Dryup, who, upon a registrate bond, had charged and denounced the debtor, and had arrested the saids duties libelled, long before the Sheriff's arrestment.——The Lords pteferred the compriser, who was infeft, as said is, to the creditor arrester, albeit the creditor, who had arrested, claimed preference, as doing more timely and lawful diligence than the compriser, seeing, divers years being past after his comprising and infeftment, he had suffered his debtor to retain the possession of the lands comprised, and had done no diligence upon his rights to recover possession, as he might have done, which is a great presumption of simulation, and could not therefore give any preference to him against this arrester, who had done all which was necessary of law to recover his payment; notwithstanding whereof the compriser being infeft, as said is, was preferred, and the retention of possession by the debtor was found no impediment to this preference.

Act. Scot. Alt. Stuart. Clerk, Gibson. Fol. Dic. v. 1. p. 179. Durie, p. 320.