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Scottish Court of Session Decisions >>
Mitchelson v Ker. [1628] Mor 2751 (29 July 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor0702751-091.html Cite as:
[1628] Mor 2751
In Competition, Pleas are receiveable by Exception, which otherwise would be Competent only by Reduction.
Mitchelson v. Ker
Date: 29 July 1628 Case No. No 91.
In an action for mails and duties, two comprisers competing, who were both infeft, but neither had obtained possession, the Lords sustained a nullity proponed by the one against the other's comprising, by way of exception.
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In this action, two comprisers, who were both infeft in the lands, contending for the mails and duties thereof; and having convened the tenant therefor, and the last comprises proponing nullity of the other party's comprising and infeftment, albeit prior to his; which, nullity, the Lords finding was receiveable, etiam hoc ordine, without reduction, where none of the parties alleged possession, thereby to claim the benefit of a possessory judgment, but were in present dispute for the possession, that by virtue of their rights, he having the best right, might be authorised to possess, whereby the party against whom the nullity was proponed, was forced to allege possession by virtue of his right, and consequently that the nullity could not be received but by way of action, which possession he qualified, in so far as the tenant convened bruiked the land by his tolerance; 2do, That the tenant and the said compriser verbally agreed together, to pay to the said compriser 20 shillings yearly for the said lands, and which duty the tenant had paid diverse years since his right; neither of these qualifications was found relevant, viz. tollerance to bruik, which the Lords found no possession in the compriser's person, neither verbal setting, for 20 shillings each year, of land estimate yearly at 500 merks, which was to be suspected in a compriser, who is presumed in law, if he had not intended fraud and prejudice to other creditors, would not have set the land so far within the worth; and so the nullity was received by way of exception, notwithstanding of the foresaid answer and qualification of possession.
Act. Craig.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 177. Durie, p. 395.
