No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored ?
Farquhar v. Campbell
Date: 22 March 1628 Case No. No 152.
Click here to view a pdf copy of this documet : PDF Copy
A minor having kept a tack, whereof his father was in possession, and being charged to enter heir, offers to renounce. Answered, He could not now renounce, in respect of the tack which he has possessed since his father's decease.——The Lords found he might renounce, restoring the benefit which he made of the tack to all parties having interest.
Auchinleck, MS. p. 131.*** Durie reports this case:
In an action by Robert Farquhar, as assignee to the L. of Carnehill, against George Campbell, as lawfully charged to enter heir to Campbell of Cuinziecleugh his father, who was obliged in some money to the pursuer's cedent, for payment of the said sum, the defender offering to renounce to be heir; and the pursuer contending, That he could not renounce, seeing se immiscuit by intromitting with the duties of certain lands diverse years after his father's decease, whereof his father was heritor, or tacksman at least, which were bruiked by his father per tacitam am relocationem, the time of his decease; and the defender duplying, That there was a decreet of improbation against him, decerning all right whatsomever made to his father to make no faith, whereby he could not be reputed heir for any intromission he had of the said lands, seeing he stood obliged, and would be compelled by law to restore the duties of the said lands to the heritor thereof, and so reaped no benefit by his father; this exception and duply was sustained by the Lords, that the defender should not be holden as heir; albeit the pursuer answered, That once the defender had entered to these lands, which were bruiked by his father the time of his decease, per tacitam relocationem, he being tacksman thereof before, by the which entry the defender having no right otherways behoved to enter as successor to his father; and there was no decreet of improbation, but which was only obtained since the defender's father's decease, against the defender's self, and was never intented against his father, and so cannot purge the defender's entry after his father's decease, and before that decreet of improbation, and which cannot make him cease to have succeeded therein to his father. Likeas notwithstanding of that decreet, be hath thereafter still intromitted with the profits and duties of the same lands. Which answer was not respected, but the exception and duply sustained, as said is, seeing the decreet foresaid would make the defender accountable for his intromission with the said lands, and so he could not there-through be reputed heir. See Passive Title.
