Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. XI.

Quadrennium utile.

Baron
v.
Harvie

Date: 20 July 1626
Case No. No 173.

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George Baron having recovered sentence and decreet against Gilbert Harvie, grand-child, and lawfully charged to enter heir to his umquhile grand-father, Robert Watson; Harvie raised suspension, and also intented reduction of that decreet, as being given for non-compearance, and because he was minor the time of the giving of it, whereby he is much hurt by making him heir to his grandfather, of whom he had no benefit, and therefore he should be restored in integrum, rebus adhuc salvis et integris. Excepted, That his reduction was not intented intra annos utiles, and so not debito tempore, he being past twenty-five years. Replied, That he did it so soon as it came to his knowledge. The Lords sustained the summons, and reponed him yet to produce a lawful renunciation, cum non sese immiscuisset bonis avitis, neither had any thing followed upon that decreet, neither comprising or poinding.

Fol. Dic. v. 1. p. 586. Spottiswood, (Restitutio in Integrum.) p. 299. *** Durie reports this case.

In a reduction pursued at the instance of one Harvie against George Baron of Kinaird, who had recovered decreet against the said Harvie, as lawfully charged to enter heir to his umquhile goodsir on the mother's side, viz. one Watson, who was obliged to relieve the said George Baron's father of some monies, which his said umquhile father had paid as cautioner for the said Watson, to the said Watson's creditor; this decreet for repayment of the said sums being so recovered at the instance of the said George Baron, against the said Gilbert Harvie, as charged to enter heir to the said Watson, whose daughter and only bairn was mother to the said Harvie, and the said decreet being only given against him eo nomine, as charged to enter heir, the same was desired to be reduced, because he offered to renounce to be heir to his umquhile goodsir rebus integris, he never having meddled with any thing that might constitute him to be heir to him; and the party who had obtained the said decreet contending, that after the giving of that sentence against him, as lawfully charged to enter heir, which was given against him in anno 1610, by the space of sixteen years since, during the which space he had done nothing to oppone against the said sentence, nor ever offered to renounce to be heir, which albeit he had immediately offered after the sentence, could not be received, far less now after so long a time; therefore, that his sentence ought to have effect, and the party could not be suffered to renounce, specially he being now major, before the intenting of his reduction; the Lords found, that albeit the sentence had been given against a major, yet that he might be heard to renounce to be heir; which renunciation they found ought to be received, etiam post sententiam given against the party only, as lawfully charged to enter heir, seeing that renunciation was offered rebus integris, nothing being otherwise alleged, either of the reducer's intromission, or of any other deed which might make him heir, except the said charge, which they found in a reduction might be elided by the said renunciation, to elide the foresaid sentence given upon the said charge only, and noways offered to be maintained by any other deed of the party, whereby he might be found heir; and this was found, for this end only, to take away all personal execution against the reducer, but not to stay any real execution for comprising or adjudication to the creditor, or any other real execution upon the goods; or lands, or debts, which the said party charged to enter heir might acclaim by the goodsir, who was debtor, from the right whereof, they found this creditor ought not to be debarred, nor he prejudged therein by the said renunciation, and by reduction of the said sentence; for this was only to take away the personal execution, which the Lords found were great injustice if it should strike against him, because he was charged to enter heir, and omitted to renounce before the sentence, that therefore this omission (which was desired to be supplied in this reduction) should make him personally liable for all his goodsire's debts, of whom he had never received benefit; and therefore, because he descended of his blood, that he should be subject to pay his debts, there being no other adminicle but the said charge; and the recoverer of the sentence being now no otherways prejudged nor damnified by this renunciation to be heir, after the sentence, than if it had been made before the the same, and it appears most just that he should be suffered to renounce; but I think of reason, that he ought to refund what has been expended by the obtainer of the sentence, in all the acts and dependencies of the process, since the time that he ought to have renounced, and that he omitted to do it, for the party has debursed the same necessarily in his default, and seeing he is reponed, it ought to be rebus integris for either party, and his omission ought not to hurt the other party; and that he ought to be reponed, it is clear by this, that one who has compeared in judgment, and being convened as charged to enter heir, and then renouncing, yet thereafter satisfying the party who had comprised, or gotten adjudication, he will be reponed notwithstanding of his renunciation, far more where there is only a naked charge, and neither renunciation made, nor comprising, nor adjudication. Vid. Craig in lib. 3. fol. 298, and I. C. Renunciatio si a suos fiat dicitur abstentio, si ab extraneis repudiatio, quam nos indistincte repudiationem dicimus, sed 1. 4. Cod De Repud. hæreditas semel renunciata amplius adiri nequit.

The same decision was again done upon the 21st of December 1627, in a reduction betwixt Campbell contra Doctor Ross, and the reducer, who was reponed, was ordained to pay L. 50 for the other parties' charges, who had obtained the decreet against the party, as charged to enter heir.

Clerk, Gibson. Durie, p. 221.