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Citation in Processes of Mails and Duties and Removings.
Inglis v. Kellie
Date: 15 December 1664 Case No. No 100.
The Lords found that a first Compriser in possession of the rents, having charged the superior, but not infeft, needs not to be called in a removing at the instance of a second compriser infeft.
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There was a removing pursued at the instance of Mr Cornelius Inglis and Alexander Jack, as having right from him, against William Kellie tenant of certain acres, who having alleged, That his master Roger Hogg advocate, to whom he was tenant by payment of the rents, was not called, he being a compriser, and upon the comprising having charged the superior; which allegeance the Lords having repelled, and having ordained Mr Roger to compear for his interest, he did resume the allegeance founded upon the comprising and charge against the superiors, and his possession of the rents. To which it was answered, That a comprising and charge without a sasine, as it could not furnish a title for an action of removing, no more can it defend the tenant in a removing; otherwise, a charge without further diligence, should be equivalent to an infeftment, which is a real right. It was replied, That a charge is equivalent to an infeftment as to the recovery of rents and duties; because, the superior being in mora and in culpa, that the compriser is not infeft, no voluntary infeftment granted by the superior to any other compriser can prejudge the first compriser, having done diligence; and though he cannot pursue a removing without an infeftment, yet he may defend the tenant from removing at the instance of a party, who though infeft, yet his right is not so valid; just as an aparent heir may defend a tenant, though he cannot pursue a removing.
The Lords found the allegeance relevant in hoc judicio.
