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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Mitchell v James Mitchell. [1673] 1 Brn 693 (23 July 1673)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: John Mitchell
v.
James Mitchell
23 July 1673 Click here to view a pdf copy of this documet : PDF Copy
James Mitchell, having recovered decreet against Margaret Cunninghame, for payment of 500 merks, contained in an heritable bond granted to Henry Mitchell, to whom he was heir,—compearance was made for John Mitchell; who alleged, That the said Henry, by his testament, had left 200 merks of that sum to him in legacy, whereof he ought to be answered and obeyed.
It was answered, That the sum, being heritable, could not fall under legacy.
It was replied, That the said James, who was heir, had confirmed that sum as moveable, and given up that bond in the inventory of the moveable debts, whereby he had homologated the legacy, and could not quarrel the same; it being special out of that same bond confirmed to him.
The Lords, notwithstanding, did prefer the heir; and found, That the confirmation being upon error, and of a bond that could not fall under testamentary confirmation, could not prejudge the heir.
Page 366.
The electronic version of the text was provided by the Scottish Council of Law Reporting