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Scottish Court of Session Decisions >>
The Creditors of Colquhoun of Kenmuir competing. [1708] Mor 12633 (28 February 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor2912633-532.html Cite as:
[1708] Mor 12633
Found in conformity to Wishart against Davidson, No 530. p. 12630.
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In the ranking, Wardrobe of Dalmarnock, Lockhart of Cleghorn, and Winram of Wiston, objecting against one another's rights, it was alleged for Wiston, I must be preferred, because, though our sasines were all registered in one day, yet I offer to prove, mine was offered to the register two hours before theirs were presented; and so, by the 13th act 1693, it is clearly preferable, which makes the date of the registration to be the standard of the preference; and the 14th act, same Parliament, ordains a minute-book to be kept, expressing the day and hour when the sasine is presented to be registered; and by the 18th act 1696, the booking and registration are made to be the only rule. Answered, The fundamental act for registration of sasines is in 1617; and all that it requires is, to express the year, month, and day, so that the least distance of time that can be allowed, in preferring one sasine to another, is the space of a day; and how easy it is for a clerk to mistake in the matter of some hours, and even to prevaricate so far, as to gratify one before another, which was presented after me; so, wherever they are registered in one day, they ought to come in pari passu. Replied, Leges posteriores derogant prioribus; and so the acts in 1693 enlarge and explain that in 1617; so that by the express letter of the law, the difference of hours is to be considered, as is done in two arrestments laid on in one day, and the clerk has given a declaration anent it. The Lords considered his testificate as ultroneous, and without regard thereto brought in all the sasines registered that day pari passu.
Fol. Dic. v. 2. p. 261. Fountainhall, v. 1. p. 439.*** Forbes reports this case:
In a competition betwixt Allan Lockhart and John Wardrop, Creditors of Colquhoun of Kenmuir, whose sasines were registered on the same day, they were brought in pari passu, notwithstanding of a declaration produced under the clerk's hands, that Allan Lockhart's sasine was presented and registered two hours before Dalmarnock's; which the Lords found not probative, no principal minute-book of the time of presenting being produced to evidence the priority.
