Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Robert M'Gill of Fingask v. Home of Wedderburn
Date: 22 February 1679
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Mr Robert M'Gill of Fingask obtaining a decreet against Home of Wedder-burn, for payment of a debt contained in his father and goodsire's bond, he suspends, and offers to prove paid, and craves an incident;, and when we are cir-cumducing the term, he produces some discharges of the bygone annualrents, amounting only to a small sum. We, not being willing to delay ourselves, offer immediately to allow them, and deduce. This was refused; because, in form,. wherever there is a production made of writs for proving, there must be an avi-sandum made with the cause to the Inner-House, and they must be there advised; and one will not get a decreet though he offer instantly to allow all they seek; which seems strange: and yet it is affirmed it was so decided by the Lords in the case of Kinfauns and one Couper, lately.
Vol I. Page 44.
Anent Apparent Heirs.
They affirm that an apparent heir may neither pursue a reduction ex capke lecti, (yet his creditors may do it, to remove impediments out of their way,) nor yet an improbation.
It was queried, if an apparent heir shall get a comprising gifted to him, if that right be redeemable from him by the defunct's creditors within ten years after his acquisition of it, by 62d Act Parliament 1661; for that act seems only to allow the redeeming of such rights as he shall acquire with money; for it speaks of repaying him the sums for which he bought and purchased it; and the case of donation, (as being infrequent in this uncharitable age,) seems not to be provided for, but to be a casus non cogitatus, wherein the statute is out, and which was not thought on; and so casus omissus habetur pro expresse et de industria omisso; and statuta, being sirictissimi juris, cannot be extended de casu in casum. Some think the act, though it ought, yet in strictness it will not reach this case. See some questions at the end of February 1680, and Stair, tit. 24; where an heir getting a comprising gratis must be paid the whole sums.
A mother giving her daughter a tocher, and taking from her a discharge of all she can ask or crave, by her father or goodsire's decease, as heir to them, (there being only daughters,) or any other manner of way; queer, if the accepting of this tocher, and renouncing the succession in manner foresaid, will be a gestio pro hcerede, and infer a passive title, yea or not. Some affirm it will, because she gets money to do it. But this were exceeding hard. How far an apparent heir, renouncing to be heir for money, is liable, see Stair, tit. 29.
What if an apparent heir renounce the reversion of the apprising, or his right of the lands apprised, and get a sum of money for it. The Lords have taken a very rational and just way in this for, if the legal of the apprising was not expired, or if there was any right to the lands standing in the apparent heir's person, and he quit that for money, then it is a behaviour; but if the legal be expired, and he gets it merely for his kindness and good will, that binds no representation on him. See Dury, 27th January 1636, Straiton; 10th February 1642, Johnston.
Vol. I. Page 44.
Anent Equality of Punishments.
Doctor Jermyn, in his Commentary on the Proverbs, c. 16, v. 11, cites to this purpose an apposite saying of St Chrysostom on the 95th Psalm:—Cum punit Deus trutinat ultionem, ut congruens sit delictis. And the English Magna Charta, anno 9 Henr. III. c. —14, “No man should be amerced but after the quantity of his offence.” And Draco's laws, to this hour, stand condemned for making one punishment for all faults; though the Stoics made all errors equal.
