Scottish Court of Session Decisions

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

Margaret Swintoune
v.
The Laird of Craigmillar

Date: 16 January 1650

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Margaret Swintoune,—as executrix to James Nisbet, her husband, who had, from umquhile Robert Prestoune of Craigmillar, a tack of Little France, set to Mr Gawine Nisbet and the said James during their lifetimes,—doth pursue this Laird of Craigmillar, as heir to his father, David Prestoune, who was heir-male to the said Robert, setter of the tack; for payment of the duties of Little France, from 1636 to 1644 inclusive. It was excepted, That it behoved her to pursue the executor and the heir of line of umquhile Robert Prestoune, by way of discussion, before they could come to the heir-male or of tailyie, according to the practick; likeas the pursuer, knowing that custom, had obtained decreet against the heir of line, but had used no execution thereon. Which the Lords repelled, since the warrandice of the tack foresaid was most proper to come against the heir-male, who had succeeded in the whole estate; likeas he had uplifted some of thir years' duty himself, or his father. As also, I think that our practick herein ought to be helped in favours of creditors; so that, seeing they all represent, the defunct's creditors ought to have liberty to pursue the executor, heir of line, male, tailyie, or provision, and especially him who has the greatest benefit by the defunct's decease;—let the payer, who is distressed, seek his relief of whom he pleases, according to the order. And as to that allegeance,—bearing, That the said umquhile James Nisbet should have pursued Mr Gawine's relict for possession, conform to his tack; and that she could not have debarred him; since Mr Gawine getting tack from the Laird of Craigmillar for his service, and putting his wife's name therein,—it was donatio inter virum et uxorem; which was revoked tacite, the said Mr Gawine having taken a posterior tack to himself and the said James; and the said James had prejudged himself in not urging the said relict to be removed: the Lords found it more subtile than of any force.

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