Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Lord Borthicke
v.
Scotte of Gallowsheilles

Date: 5 July 1649

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In the exhibition pursued by my Lord Borthicke, against Scotte of Gallowsheilles, it was excepted, That the said Lord could have no such writs exhibited ad deliberandum, since he had renounced in favours of the defender his father, who was a lawful creditor; especially seeing the said Lord was then major when he renounced. It was replied, That, nihil tibi reo deest, who have not sought adjudication upon that renunciation; and you, who pretend yourself to be a creditor, may be in a better case, when, upon the inspection of the writs, I may resolve to enter heir, and satisfy you to your less charges; yet there may be here some loss of time, and perhaps prelation of creditors. There had been here a great dispute before, de adita hæreditate et repudiata, de abstentione et immixtione, et jure deliberandi, et de successione ex testamento et ab intestate; where they mistook the difference of aditio et immixtio, thinking that to be in testamentis1, and this ab intestato, where both are in testamento; et hæres extraneus dicitur adire hæreditatem, suus vero se immiscere.—Tit. de Hær. Qual. et Differ. lib. 2. Institut.

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