Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

D. 155. Mr. George Johnston contra Sir Charles Erskine. February 6. 1668.

THE Lands of Knockhil being a part of the Lands of Hodam, did belong to Richard Irvine, and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard, at the instance of Mr. John Alexander Minister at Hodam: But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing, dureing the said Robert his Life; The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John, the Right of his Comprysing, and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Si∣sters and his Sisters Children, obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them, and their Resignation, Mr. John Johnston being In∣feft in October 1666. pursued for Maills and Dueties: The Lord Lyon compeared and alledged, that he and the Tennents ought to be Assoilʒied in this possessory Judgement, Because he and his Authors had been in possessi∣on by vertue of the Comprysing at the instance of Mr. John Alexander, by the space of seven years, whereupon Infeftment has followed. It was An∣swered, That the Alledgance is not Relevant, unless he had said that he was in possession seven years by vertue of a real Right, which cannot be said, the Infeftment being late and of the date foresaid. It was further Alledged by the Lord Lyon, that he ought to be preferred, because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert, as charged to enter Heir to the said Richard; and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard. It was Replyed, That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime; his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft; and de facto was Infeft as Heir to the said Richard, before any Infeftment upon Alexander's Comprysing;

so that his Authors Infeftment being prior to the Lord Lyon's Infeftment, the Pursuer ought to be preferred: and as Robert if he had been served spe∣cial Heir to his Grandsire, if he had not been infeft, the next Heir might have been Infeft as Heir to Richard; and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert; so in this case Mr. George ought to be preferred; the special charge against Ro∣bert being only equivalent to a special Service; and no Infeftment having followed in the person of the said Robert or the Compryser. It was Duply∣ed, That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered; which is the Certification in the special Charge; and upon a Comprysing, if Robert had been Infeft, Infeftment being taken quocunque tempore even after his decease, before any other person had been Infeft upon a Comprysing or Right from a next Heir; The Comprysing against Robert would have been preferable.

The Lords Found, That the benefite of a possessory Judgement is only competent by vertue of a real Right; and that a Compryser cannot claim the same, without an Infeftment or Charge against the Superior; and repelled the first Alledgance.

The Lords Found The second Alledgance Relevant, and preferred the Comprysing in respect of the Infeftment thereupon, before the Infeftment upon the Right from the Heirs of the said Richard.