Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

John M'Lurg
v.
Gordon of Kirkonal

Date: 19 December 1673

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John M'Lurg, being assignee to a bond granted by Kirkonal's father and elder brother, did pursue him, as representing his father, upon this passive title,— that he had intromitted with the maills and duties of the lands of Kirkonal, wherein he died infeft.

It was alleged for the defender, That he bruiked his father's lands by an expired comprising, which he had acquired, during the lifetime of his elder brother; and so, not being apparent heir, by the late Act of Parliament his right could not be questioned, either to make him liable to his father's creditors, that they may redeem the same, by payment of such sums of money as he had truly given out when he acquired the right, or to infer a behaviour against him, albeit his comprising was extinct by intromission within the legal.

It was replied, That the benefit of the Act of Parliament was competent to the pursuer, notwithstanding of the allegeance; because the defender's elder brother, being then out of the country, and dying shortly thereafter, unmarried, he was always looked upon as the apparent heir to his father; and, by the death of the elder brother before the father, he was his only apparent heir, and so his case did fall within the compass of the Act of Parliament: and if it were otherwise, all creditors might be frustrated of the benefit thereof, by acquiring rights in the name of a second brother, contrary to the express meaning of the said Act; as was lately decided in the case of the Laird of Posso, where his eldest son, acquiring right to a comprising during his father's lifetime, at which time he could not be reputed apparent heir, yet, in respect of the meaning of the Act of Parliament, and that if his father had been dead, he was the only person could represent him.

The Lords did decern in favours of the creditors. And to the second part it was replied,—That the comprising, albeit extinct by intromission within the legal, yet it being a title to possess until that had been questioned by a declarator, it was sufficient to defend him against a behaviour as heir by intromission; which can never be interpreted but where an apparent heir cannot ascribe his intromission to any other right or title.

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