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Scottish Court of Session Decisions >>
Leslie v Leslie. [1666] Mor 11193 (8 December 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor2611193-373.html Cite as:
[1666] Mor 11193
In a declarator of escheat, found that the horning did not prescribe on account of the King's minority, and interruption of the government.
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Patrick Leslie of Balquhoyn pursued a general declarator of the single and liferent escheat of John Leslie of Balquhoyn, against James Leslie and his spouse, as nearest of kin to the said John. It was alleged, That the horning was prescribed, the declarator being raised forty years after the horning. It was replied, That though prescription should run against the King (which was denied) yet in this case it could not; the King being minor the time of the prescription diverse years, and the government being interrupted; so that there was not tempus utile during the usurpation; and the King is not in use to dispose of escheats, until application be made to his Majesty; and, by the act of Parliament, it is provided, that the negligence of his officers should not prejudge him.
The Lords found, That the horning did not prescribe, in respect of the King's minority, and interruption foresaid.
It may be asked, If that reply of his Majesty's minority and interruption were not competent? And if the escheat were gifted by a Lord of regality or a superior, quid juris? And it seemeth that a horning being pæna, and once execute, doth not prescribe; seeing the rebel, if he should survive forty years, his liferent would fall to the superior; and there is no reason that he should lucrari, and be in better case ex culpa, and by the continuance of his rebellion for so long a time.
