Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Corsar
v.
Dury

Date: 2 December 1636

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One Corsar pursued one Dury for a debt, as he that had behaved himself as heir to his father, by intromission with the mails of certain lands, whereof his father died in possession. Alleged, Any intromission he had was not as heir to his father, but to his grandfather, who died last vested and seised in these lands. Replied, He could not clothe himself with his grandfather's right, because he was denuded in favours of the defender's father, by contract, whereby he was bound to infeft his son (the defender's father,) in the same lands. Duplied, Notwithstanding thereof, the real right remained with the grandfather, so that the defender could never come to the lands but by his grandfather. Triplied, He had right to the mails, as apparent heir to his father, who had right thereunto by virtue of the same contract, and would have been preferred to the grandfather in the same: likeas, if he were heir to his grandfather, he would be obliged to fulfil the contract made to his father; and a creditor that had comprised the right of the foresaid contract would be preferred to him in the same mails. And further, he could not allege but he had meddled with the said mails, as succeeding to his father, because his father had set a tack to the tenants in his time; and the defender had uplifted the tack-duty from them, whereby he acknowledged his father's right. To this last part, Answered, Before a warning, he could get no other duty from the tenants than that they were in use to pay. This got not an answer, because the advocate, (who was for the pursuer,) seeing the Lords incline to the defender's part, passed to another allegeance. But the whole Lords almost seemed to be of this opinion, that, in gestione pro hærede, est plus animi quam facti, and that one cannot behave himself as heir sine animo gerendi; and that, in this case, the defender might very well declare quo animo fructus perceperit, and ascribe his intromission to his grandfather's right; thereby to free himself of the pursuit.

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