Exceptions, Whether Proponable in Cursu Diligentia.
King's Advocate v. Craw
Date: 19 February 1669 Case No. No 87.
In a general declarator of bastardy, it was objected’ that a defunct had obtained a legitimation from the King. It was answered, that legitimation, what effect it may have, cannot be disputed in the general declarator but must be reserved to the special, which was found relevant.
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The King's Advocate pursues a declarator of the bastardy of one Craw. It was alleged for the defenders, That the libel was not relevant, unless it had been condescended who was the bastard's mother, and offered to be proven, that she was never married to his father. It was answered, That not being married was a negative, and proved itself, unless the defenders condescended upon the father, and offered to prove married. The defender answered, if that was relevant, the most of all Scotland might be declared bastards, it being impossible after a considerable time, to instruct the solemnising of a marriage; but law and custom doth require, that at least it must be condescended on and instructed, that the defunct was holden and reputed bastard, at the time of his death.
Which the Lords found relevant.
And it being further alleged, That there was produced a legitimation taken by the bastard from the King, which did import his acknowledgement of being bastard, and was stronger than being holden and repute bastard; it was answered, non constat, that the defunct took this legitimation, but some other might have done it in his name, without his warrand.
The Lords found the legitimation sufficient to instruct the bastardy.
It was then alleged, That the legitimation denuded and excluded, the King not only giving power to the bastard to make testament, but to dispone of his heritable rights, even on death-bed. It was answered, That whatever the stile of such gifts be, they are never extended to heritable rights, but only to a faculty to make testament, which bastards want by the law: but if the bastard made no testament, and did exhaust his moveables by universal or particular legacies, the executor nominate could only have the third, which follows the office, and the King would have the rest of the inventory not exhausted. 2dly, All general declarators being summary, these debates are only competent in the special declarator.
The Lords repelled the defence hoc loco, and reserved the same to the special declarator.
