Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Hamilton
v.
Brown

Date: 15 December 1666

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Hamilton of Grange being pursued, as representing his father upon the title of behaving and gerens pro hærede, for payment of a debt of his father's:—

It was alleged, That this condescendence, viz. That he had behaved as heir, in so far as he had granted dispositions of land belonging to his father; and 2dly, that he had consented, as apparent heir, to some right of lands apprised from his father; is not relevant; unless it were said and alleged that he had done these deeds before the expiring of the comprising; seeing he could have no right after the expiring of the same; and neither could be heir nor gerens pro hærede, as to such lands: And, as to his consent, it was not sufficient unless he had disponed.

The Lords inclined to be of this judgment,—That his consent, being as apparent heir, should import behaviour; and that, though the comprisings were expired, he might have an interest to question the same, as not formal, or null, or satisfied by intromission, or by some other ground: and that, by his consent, he was denuded of that interest; and therefore such dispositions should import behaving. Yet, in respect the writs, which were to be used to prove the passive title, were not produced,—and much may depend upon the wording and conception of the same:—

The Lords thought fit to ordain, before answer, the writs to be produced; and assigned a term to that effect: But declared, that their act should be litiscontestation quoad hoc—That the pursuer, after the term is run upon the said act, should not get others, as if there were not litiscontestation.

Lockhart for Grange, and Birnie for the pursuer.

Page 27.