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Scottish Court of Session Decisions >>
Scot of Raeburn v Walter Scot of Hallchester. [1710] 4 Brn 795 (28 February 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Brn040795-0302.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Scot of Raeburn v. Walter Scot of Hallchester
Date: 28 February 1710
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A contest arose about the succession to Sir William and Robert Scots of Harden. Scot of Raeburn, as being nearest heir of tailyie, by an old bond of tailyie, takes out brieves from the Chancery for serving himself to them. Walter Scot of Hallchester, as nearest heir of entail, by a posterior tailyie, takes out brieves likewise: And, each of them raising mutual advocations, it was contended for Hallchester against Raeburn, that he could never serve heir on that tailyie; because not only was it revoked, altered, and recalled by a subsequent tailyie in his favours, but likewise, there was a decreet of certification in an improbation obtained against it, at the instance of the very makers of the tailyie; so you cannot serve upon a non ens.
Answered,—The first tailyie had no clause giving a power or faculty to alter, and so could not be revoked. And, for the certification, I was not then in rerum natura: Neither is my father called; and so res inter alios acta nee mihi nocet nee tibi prodesse debet: Besides many nullities I can object to that decreet.
The Lords found, so long as the certification stood unreduced, Raeburn could not serve; but allowed Hallchester's brieves to go on; who was not only heir of tailyie by the last destination, but likewise the nearest lineal heir-male, and could serve himself in that manner though there had been no tailyie: but Raeburn may compear at the service, and protest his right may be reserved, in case he prevail in his reduction of the certification and posterior tailyie.
Compearance was likewise made for Ker of Chatto, and Scot of Ancrum, who were descended of old Sir William Scot of Harden by his two daughters; and so were his heirs of line, and to whom, by the first tailyie, L.20,000 Scots was provided, with which sum it was expressly burdened. But the Lords superseded to give answer to their interests till the first of June.
