Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

William Yeaman
v.
Mr Patrick Oliphant

Date: 21 January 1663

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There being a process, pursued at the instance of William Yeaman, advocate, against Mr Patrick Oliphant, advocate, for the maills and duties of the lands of Newtoun;—it was alleged, That the defender should be assoilyied, because he bruiked the lands by gift and infeftment of forefaulture under the Great Seal, through being of Sir James Oliphant declared fugitive in a criminal court, or denounced rebel, not only for matricide, having killed his mother, but for murder under trust, having killed her under trust. It was answered, That, by the Act of Parliament against parricide, the parricide's heritable estate is declared to pertain to the collateral and next heir, excluding only himself and his heirs in linea recta. 2. Though murder under trust was libelled, yet it was not proven, nor was the parricide cited to compear before the justices under any higher pain than the pain of horning, and not under the pain of treason: and only his moveables, by the act of adjournal, were ordained to be escheat; and therefore his heritable estate could not fall, nor belong to the king, by any such determination or act of the justice-court; and the infeftment under the Great Seal is obtained periculo impetrantis. The Lords repelled the allegeance in respect of the answer.—In prcvsentia.

No 69, Page 51.