Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Dalswinton
v.
Barncleugh

Date: 22 January 1740

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[Elch., No. 2, Papist.]

In this affair there were several questions, all turning upon the meaning of the Act of Parliament 1700, intitled, An Act to prevent the Growth of Popery.

1mo, The first question was, Whether the Protestant heir can take advantage of that Act, and serve himself heir without declarator of the irritancy incurred by the Popish heir?

The Lords found there was no occasion for a declarator; because there was no mention of a declarator, as there ordinarily is where it is required, as in the Act concerning tailyies; and because it is said, that, immediately after the irritancy incurred by the Popish heir, the right of succession in his person shall become null and void, and devolve to the next Protestant heir; and the prescription by which the nearest Protestant heir loses his right of succession, which is carried to the next, runs not from the declarator, as it certainly would do were there any necessary, but from the irritancy incurred.

2do, Whether the Popish successor, not qualified in terms of the Act of Parliament, can be charged to enter heir?

The Lords found that he could not; because it was absurd to charge him to enter heir who could not; and so it was decided before, and the decision confirmed by the decree of the House of Peers.

N.B.—This is thought a bad decision.

3tio, Whether the Protestant heir can be charged to enter heir;—that is, whether a charge to enter heir in special, will vest the estate in his person, in the same manner as in the person of any other heir, so that adjudication or other diligence may validly follow upon it?

The ratio dubitandi was, That the Protestant heir was required, by the words of the statute, to make up his titles by service.

To which it was answered, That, in another clause of the Act, there was mention made of the Protestant heir’s prosecuting his right by service, or other legal means; and that it would be hard to deny this heir the privileges that other heirs had of making up their titles, by granting a bond to a trustee who charges them to enter heir, and thereupon adjudges the estate; which was the way that the Protestant heir, in this case, had made up his titles. Which the Lords sustained.