Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Hamilton
v.
Kennedie

Date: 31 July 1673

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John Weir having been heritor of the lands of Cummerhead, he wadset the same to Thomas Weir for a small sum. There was a second wadset by John Weir, younger, as being infeft as heir in the lands (by a precept of clare constat,) to the said Thomas Weir, renouncing the former wadset: Kennedie of Auchtifardel did acquire right to this wadset, and Hamilton of Raploch acquired right to the reversion: Thereafter Auchtifardel did take a new right from John Weir, the oy, and infeft him, as heir to his goodsire, passing by his father.—In the competition of which rights, it was alleged for Raploch, That the right of John Weir, the son, could not be quarrelled; because it was perfected by prescription, in so far as he produced the son's seasine in anno 1599, and the wadset granted by the son shortly after, which had been clad with possession much more than 40 years, and which was sufficient, without production of the precept whereupon the seasine proceeded, conform to the Act of Prescription; so that the son's right being perfected, no right derived from the oy, as heir to the goodsire, passing by the son, could be respected. It was answered, That the Act of Prescription excepted falsehood; and the son's seasine behoved to be false, because it was offered to be proven that the father lived seven years after the date of the son's seasine; so that that seasine could not make him have right as heir to the father. And there being a mutual probation allowed for instructing the time of the death of the first John Weir, Auchtifardel adduced several witnesses, some past 80, and one past 100 years of age, who deponed, that the first John Weir died in anno 1606, or thereby: Which coming to be advised, it was alleged for Raploch, That this probation could not take off the benefit of prescription:—1mo. Because it was not positive, bearing only “to be such a year or thereby;” and, in a matter so ancient, where the question was only of the date, the oaths of old doating men could not make a sufficient probation, much less could it take off the adminicles for astructing the seasine, viz. the wadset right granted by the son, and mentioning both the seasine and precept whereunto Auchtifardel himself had taken right; and the notary's protocol, bearing, “this and many other seasines set down by their dates orderly, both before and after this seasine, and all before the year 1606. 2do. This ground of improbation is but indirect, and not on a necessary consequence; for, if the superior gave a precept of clare constat to the son, as heir to the father, and seasine was taken thereupon,—albeit the father had been alive, so that it was the superior's error to suppose him dead,—the precept and seasine would be true, though erroneous and invalid, and 40 years' possession would valid them by prescription; so that, in dubio, error is rather to be presumed than falsehood. The Lords sustained the seasine as a true seasine, perfected by prescription, and adminiculated as aforesaid, notwithstanding of the probation in the contrary.

Vol. II, Page 227.