Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Laird of Hemsfield
v.
Maxwel

Date: 2 July 1624

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L. Hemsfield, donator to the ward and marriage of L. Appilgirth, pursuing declarator thereupon; compeared one Maxwel, who had a right to certain of the lands, which fell in ward, made to him by the vassal, by whose decease the ward fell; and alleged, that the gift and pursuit could not extend to the lands disponed to him, because the gift of ward libelled was taken to the behoof of the L. Appilgirth, eldest son and apparent heir to the vassal deceased, the excipient's author, who, being his apparent heir, could not, by any gift of ward, or any other deed, impugn the right made to him by his father, nor come against the same. Which allegeance was repelled, in respect that the eldest son might as well have procured the gift of ward foresaid, as any stranger; so that, as a stranger might have pursued upon the right of that ward, and could not have been debarred from the lands, whereof the excipient pretended to have right from the defunct, even so the apparent heir to the defunct might do the like, except that he had been heir to his father, or that the excipient might make him legally to represent him, in which case he could not quarrel his father's deed; but, being only apparent heir, he might acquire the gift, and do thereanent which a stranger might do.

Act. King. Alt.——. Gibson, Clerk.

Vid. 21st March 1629, Weyms.

Page 135.