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Scottish Court of Session Decisions >>
Ebenezer Oliphant Supplicant. [1746] Mor 4728 (25 June 1746)
URL: http://www.bailii.org/scot/cases/ScotCS/1746/Mor1104728-059.html Cite as:
[1746] Mor 4728
Effect of Attainder of the Institute, or Heir of Entail.
Ebenezer Oliphant Supplicant
Date: 25 June 1746 Case No. No 59.
An heir of entail was declared to be attainted, if he should not surrender within a certain time. During the currency of that time, the Lords, on a petition for a substitute, ordained the entail to be recorded.
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James Oliphant of Gask, with consent of Laurence Oliphant his eldest son, in the year 1719, made a tailzie of the estate of Gask.
Ebenezer Oliphant, goldsmith in Edinburgh, one of the substitutes, gave in a petition on the 4th instant to have it recorded, which was ordered to be intimated to the first institute and substitutes prior to the petitioner.
This was done to Gask at his dwelling-house; but before the report of the intimation, an act of attainder was past, in which he was comprehended.
The petition was ordered to be intimated to the Crown Lawyers, who objected to the recording, for the Crown had gained a jus quæsitum by the act, in consequence whereof Gask stood attainted from the passing thereof, if he should not deliver himself up within the time prescribed.
The Court were of opinion, That as it might happen the attainder might never take effect by his surrender, and either being acquitted on trial, or dying without trial, in either of which cases the recording would certainly be effectual to save the estate to the heirs against posterior contractions, the tailzies ought to be recorded, and ordered accordingly.
Pet. D. Græme.Alt. Sollicitores.
Fol. Dic. v. 3. p. 233. D. Falconer, v. 1. No 123. p. 151.
