Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lord Neil Campbell's Relict, Children, and Creditors, v. Mr Archibald Campbell, the Eldest Son
Date: 24 February 1693
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The relict, children, and creditors of the Lord Neil Campbell, against Mr Archibald Campbell, the eldest son: during whose absence out of the kingdom the Lords had named a factor to uplift the rents; and he, not only as apparent heir, but as going presently to serve heir, craved it might be recalled, and he admitted to the possession of his own estate, and offered to find the Earl of Broadalbane cautioner. On the one hand, it was urged, that the defunct's possession, ipso momento continued upon and passed to his heir; and though there was a factor named in his absence, yet, whenever he claimed his right, he behoved to be repossessed, by the principles of law. On the other side, the creditors being now in possession, it was hard to turn them out; especially it being a Highland interest, where they could not so easily recover the possession. Therefore the Lords struck a middle course, and refused the offer of Broadalbane as cautioner; he having stated himself already as their party, and being potentior adversarius, et difficilis conventionis; and that the factor should continue till they found some Lowland caution that will be more accessible to the creditors.
