Subject_1 HEIRSHIP MOVEABLES. Subject_2 SECT. III.
In what cases not claimable.
Laird of Craig v. Laird of Powrie, Ogilvie
1583.
February. Case No. No 29.
A person who dies at the horn, will have no heirship moveables.
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The Laird of Powrie, Ogilvie, being pursued by the Laird of Craig, for deliverance of ane house, and fortalice of the Craig, it was alleged be Ogilvie, That Roger Wood, father to the Laird, and to whom he was heir, aut saltem pro hærede se gessisset, had set to him tack and assedation of the Mains of the Craig, with the tower and fortalice of the same, et sic quem de evictione tenet actionem eund, &c. he qualified pro bærede gerere, that the said Laird of Craig had intromitted with the heirship goods, such as beds, boards, ploughs, harrows and horse, with the place pertaining to his umquhile father, called______________. It was answered, That the excipient could not be heard to allege intromission with any heirship goods, because the father of the pursuer, Roger Wood, deceased the King's rebel, and at the horn; and so if any goods he had, the same pertained to the King's Majesty and his treasurer, and na other person could have just interest to have intromission with the same. To this was answered, partly be reasoning among the Lords, partly at the bar, That the horning of the defunct took not away the intromission and deed of him qui se gessit pro hæerede, for albeit a man be at the horn non privatur jure, ab intestato succedendi active et passive, and a man may be at the horn and have no heir, and being at the horn, others may succeed to him. Hæc est opinio Baldi, in L. 1. C. De hæredibus institusndis, ubi loquitur, de et deportat. qui fictione juris idem est cum co quem nos dicimus at the horn. ——The Lords found be interlocutor, That the horning took away all intromission with heirship goods, and that the party could not be heard to allege pro hærede gerere, in respect of the said horning.
