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Scottish Court of Session Decisions >>
Ogilvie v - [1638] Mor 9856 (15 December 1638)
URL: http://www.bailii.org/scot/cases/ScotCS/1638/Mor2309856-175.html Cite as:
[1638] Mor 9856
Any colourable title of intromission found to elide the passive title.
Ogilvie v. -
Date: 15 December 1638 Case No. No 175.
Found again in conformity with Moreston against Frendraught, No 173. p. 9853.
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One Ogilvie, servitor to Mr John Fletcher advocate, pursuing—as intromitter with his father's goods and gear, for payment of a duty of a tack of the lands of — set to him in tack by—,and which duty was resting unpaid the years libelled by the defender's umquhile father; and the excipient alleging, That he could not be convened hoc nomine, as intromitter with his father's goods, because his father died rebel, and at the horn; likeas, the gift of his escheat was disponed to a donatar, who obtained declarator, and thereafter disponed the right thereof to this defender, by virtue whereof he intromitted, which cannot make him liable to pay his father's debt;—the other replying, That that gift cannot prejudge the pursuer, nor defend the excipient, because notwithstanding thereof the defunct remained continually in peaceable possession of all his own goods diverse years unto the time of his decease, at the which time the defender immediately entered, and possessed himself therewith; likeas, he yet bruiks the same lands, set in tack to his father: The Lords found this reply relevant in hoc casu, to make the defender liable for the tack-duty of the years by-past, owing by his father ad hunc effectum. The reply was sustained, notwithstanding the defender alleged, he bruicked the tack by virtue of the said escheat, as said is, and that he was content to pay the tack-duty of all the years since his father's decease; for the Lords thought, the reply being proved, he ought to pay sicklike the duty of that tack owing by his father, who retained the possession of his own goods, during his life, seeing he entered thereafter to the possession both of tack and goods.
Act. Fletcher.Alt. ——.
Fol. Dic. v. 2. p. 43. Durie, p. 867.
