Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XVIII.

Decrees in Absence.

Simon Fraser
v.
Hugh Fraser

1728. February.
Case No. No 342.

Decree in absence, what effect?

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It being doubted whether the peerage of the family of Lovat descended to heirs-male or heirs-female, the heir-female, while the heir-male was abroad, obtained declarator of her right to the peerage. This decreet being simply in absence, and passing without proof, when the heir-male appeared for his interest, the question occurred, If it should be turned into a libel, or be allowed to stand, with liberty always to the heir-male to be heard upon his pretensions to the peerage tanquam in libello; it was yielded for the heir-female, that in processes for payment, where the decreet is in absence, and without proof, there is both reason and custom for turning such into a libel; it remains still incumbent upon the claimant to bring evidence of his debt; and as he is in prosequendo, his decreet can be of no use to him where it is objected to; but that derceets of declarator of a jus incorporeum stand upon a different footing; they give instant possession, and have their full effect, without necessity of further diligence; and as the heir-female, in virtue of her decree, stands in possession, there is no reason she should be deprived of her right of possession, till the heir-male's right be made out in a counter action of declarator. Answered, Possession commonly makes a presumptive title to the property, which must found a right to continue possession until the presumption be taken off by a contrary proof; that in the present case the possession, founded upon a decree in absence, without proof, can be no presumptive title, and therefore the heir-female ought to have no benefit by such a possession. The Lords turned the decree into a libel. See Appendix.

Fol. Dic. v. 2. p. 205.