Scottish Court of Session Decisions

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

Stuart
v.
Wilson

Date: 11 February 1629

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In a sentence obtained, against one as heir to his predecessor, for payment of a sum of money, wherein his predecessor was debtor, for the price of a tenement sold by the obtainer of the sentence to the father of that defender, who, as heir to his father, was decerned to pay the sum; and the same defender, upon the same contract of alienation thereafter, intenting action of warrandice of that tenement, as heir to his father, against the said party, seller of the land; in which pursuit, having produced the foresaid sentence given against him as heir, to verify and instruct his title and interest, viz. that he was heir;—the Lords found the same not to instruct him to be heir, but that he should otherwise instruct the same than by the said decreet; albeit he alleged, that, seeing the defender had recovered sentence against him as heir upon the same contract, that sentence should work betwixt thir parties themselves, to make them heirs hinc hide in the dispute to be moved betwixt them upon this contract, pro et contra. Which was not respected; but it was found he should prove it otherwise, seeing that will not prove active which proves passivè.

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