Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.
Subject_2 The following CASE, and those in the preceding pages, marked as taken from 2d MS. are not found in the MS. followed by Mr Morison, while printing in his Dictionary the Cases from Auchinleck referred to in the Folio Dictionary by Lord Kames.

James Boyle
v.
Robert Gamble

Date: 8 January 1629

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James Boyle, procurator-fiscal to the commissary of Glasgow, his brother, being decerned executor-dative to the deceased Agnes Milliken, spouse to Robert Gamble; convenes the said Robert, as intromitter with the goods and gear of his defunct spouse, before the commissary of Glasgow, his brother, to hear and see the said Robert decerned to make payment to him, as executor-dative decerned, of the goods and gear pertaining to the defunct. The said Robert Gamble craves this action to be advocated, by reason the commissary could not be judge in his brother's cause. It was answered, That he was pursuer only ratione officii, as procurator-fiscal, and that this pursuit was no ways to the behoof of James Boyle, but to the behoof of the bairns and nearest of kin to the defunct. The Lords granted the advocation, and thought it not fit that this action should be pursued, in the pursuer's own name, before his brother, but that he should have some person in his place.

2d MS. Page 13.