Whether a woman under coverture is to be considered as non valens agere. - The effect where there is a medium impedimentum to bar pursuit.
Scot of Hassendene v. the Duchess of Buccleuch
Date: 21 July 1671 Case No. No 380.
A person was bound to denude of an estate if the donor should have heirs of his own body to succeed him. Prescription found not to run against the heir till the donor's death.
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Umquhile Scot of Hassendene having no children, disponed his estate to Buccleuch his chief, who granted a back-bond of the same date, bearing the disposition to have been granted upon the ground foresaid, and obliging himself and heirs, that in case Hassendene should have heirs of his body to succeed him, that he should denude in favours of these heirs; and now his son and heir born thereafter, pursues the Duchess to denude, who alleged absolvitor, because the back-bond being now fourscore years old is long ago expired. It was answered, That albeit the date be long since, yet the prescription runs not from the date, but from the death of the pursuer's father, which is within 40 years, for the pursuer could not be his heir before he was dead; and the backbond bears, if Hassendene had heirs to succeed him. It was answered, That heirs oft-times were interpreted bairns that might be heirs; and if this pursuer had pursued in his father's life, he could not have been justly excluded, because his father was not dead, and he actually heir, and so valebat agere, in his father's life. It was answered, That although in some favourable cases, heirs be interpreted to be bairns that might be heirs, yet in odiosis, it is never so to be interpreted, and there is nothing more odious than to take away the pursuer's inheritance, freely disponed to Buccleuch by his father, in case he had no children, upon prescription, by such an extensive interpretation of the clause. 2do, If he had pursued in his father's life, he might have been justly excluded, because if he had happened to die without issue, before his father, Buccleuch had unquestionable right, and so during his father's life he could not be compelled to denude.
The Lords found that the prescription did only run from the death of the father, and that this pursuer could not have effectually pursued in his father's lifetime.
