Scottish Court of Session Decisions

Subject_1 BASTARD.
Subject_2 SECT. II.

Strangers may succeed to a Bastard as Heirs of Provision.

Innes
v.
Hay, Clerk Register, and the King's Advocate

1584. March.
Case No. No 2.

Lands being disponed to a man in liferent, and his bastard in fee, and failing of heirs-male of the bastard, to a third party; the Lords reduced a gift of bastardy made by the King to another; and found that the law, Quod bastardus nota potest habere hæredem, nisi de corpore suo legittime procreatum, is to be understood only of the legal heir, not of heirs of provision.

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The Earl of Errol disponed a piece of land to one Innes, in liferent, and to Robert Innes, his natural son, in fee; and failing of heirs-male of Robert's body, to Alexander Innes of Coxton: Robert having deceased without lawful issue of his body, the King presented Alexander Hay, Clerk-Register, to be tenant of these lands to the Earl, as vaking in his hands by reason of Robert's bastardy. Alexander Innes, who was substitute in the charter after Robert, pursued the Clerk-Register and the King's Advocate, to hear and see the same presentation reduced, as having the undoubted right to these lands, by virtue of his substitution.—Alleged, That the King's interest and commodity falling to him by the common law, whereby the whole goods, moveable and immoveable, pertaining to a bastard, who had died without lawful succession of his own body, pertain to the King, could not be prejudged by any private deed whatsoever; and this was factum privatum, substitutio facta inter privatas personas, quæ nulla modo potuit derogare juri publico, cum fortior sit dispositio legis provisione hominis.—Replied, That the King had no interest in respect of the substitution, because it being voluntary to the Earl to dispose of these lands, and being dominus et moderator rei suæ, as he could not be hindered to give it to a bastard, so he might substitute any other to him. And the law quod Bastardus, non potest habere hæredem nisi de corpore suo legitime procreatum, is to be understood, in linea descendente et collaterali; which sechided not a substitute to a bastard at the will and pleasure of the disponer.——The Lords found the reason of reduction relevant notwithstanding of the said presentation. Vide Craig, lib. 2. d. 18.

Spottiswood (Bastardy) p. 28. *** Colvil reports the same case:

The Master of Arroll and the Earl of Arroll, the Master being fiar, and the Earl liferenter, disponed a piece of land in feu farm and heritage, to one James Innes, liferenter, and to Robert Innes, his natural son, in fee; and failing of the said Robert, and the heirs-male gotten of his body, to Alexander Innes of Coxton; the said Robert that was the natural son fiar, being deceased without any lawful succession of his body, our Sovereign Lord presented Alexander Hay, Clerk of Register, to be tenant of the said lands to the Earl of Arroll, as if the lands had vaked in his Majesty's hands by reason the said Robert being a bastard, and having no lawful succession of his own body, by the ancient laws of the realm, the king's Majesty fell heir to him, quia bastardus non potest habere hæredem nisi de copore suo legittime procreatum: Alexander Innes of Coxton, who was immediate substitute into the charter, after the decease of the said Robert, pursued the Clerk of Register and King's Advocate, to hear and see and said presentation, to be reduced, as being obtained tacite et suppressa hæreditate, making mention that the lands, by decease of the said Robert Innes, heritable fiar, vaked in the hands of our Sovereign Lord; or at the least, he had good right to present a tenant o the Earl of Arroll, being overlord and dominus directus; albeit it was of truth, that the said Alexader Innes, being next and immediate substitute in the said charter, had the only undoubted right; and, by his substitution the King's Majesty and his Advocate, were absolutely secluded, notwithstanding of the said Rober's bastardy.—It was reasoned parly at the bar, and partly among the Lords-solves, against the reasons of the summons, That the said Alexander Innes, albeit he was next and immediate substitute into the said charter of foufarm could no manner of way prejudge the King's Majesty's interest, quia fuit factum privatum quod nullo modo juri publico derogari potvit; and also the King's Majesty's profit and commodity that appertained unto him by reason of the common law, and the bastard dying without lawful succession of his body, his whole gear appertains, both moveable and immovable, to the King's Majesty, could not be prejudged privata lege et substitutione facta inter privates personas: And so the King's interest and his profit that fell to him by the law, anent the decease of a bastard without lawful succession of his body; likeas if the lands had been first disponed to the bastard, and succession had failed in him, the King's Majesty would have been his heir; so in all manner, the substitution could not prejudge the King's Majesty's interest and right, quia quod una via prohibetur alia via non admittitur.—It was replied and reasoned upon the other part, That the exception ought to be repelled, and that the King had no interest into this case, in respect of the said substitution, because ab initio fuit factum voluntarium to the said master and Earl to dispone their lands as they pleased; and if they had full liberty of the disposition of their own, they might make substitution of bastards, as well as they might give it to a bastard; and as to the law, quod bastardus non habet hæredem nisi ex suo corpore legittime procreatum, hoc intelligendum fuit in linea descendente, et linea collaterali; but the law secluded not but a bastard might be substitute, and be an heir by way of provision and tailzie; and failing of his lawful succession, others to be substitute to succeed immediately to him, at the will and pleasure of the disponer, quia unusquisque est Dominus et moderator rei sue; for a person may dispone his lands, and take them to his heirs-male, any of his surname, præteritis filiabus et legittimis hæredibus; and yet the same is not agreeable to the common law.——The Lords, after long reasoning, pronounced definitive, That the reason of the summons was relevant and so reduced the said presentation.

Colvil, MS. p. 399.*

* This is taken from an old copy of Colvil's Decisions, which the Editor only lately discovered in the Library. See Note under page 329.