A lady who was daughter to in Earl and wife to a churchman, possessed an heritable bond, on which she was not infeft. Found that all these circumstances did not entitle her to have an heir.
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Arbruchell reported Cochran of Kilmaronock against the Duchess of Hamilton, in a reduction, the title whereof was an adjudication of the barony of Evandale, out of which Lady Margaret Kennedy had an heritable bond from the Duke for 50,000 merks, but was never actually infeft thereupon. Alleged, The adjudication is null, because it does not adjudge the right of the sum contained in the said bond, (as it ought to have done,) but only the lands of Evandale, on a false supposition, as if she had stood infeft therein, (as she did not,) and so it can be no title for a reduction. Answered, The said bond was mentioned in the narrative of the decreet, and the conclusion, which was sufficient to sustain the diligence. Replied, The conclusion could not exceed the premises, and it being omitted in the subsumption, it was altogether defective and unformal; which the Lords found, though generally the diligence of creditors are more favourable than to be overthrown on small quiddities and omissions in exact libelling. In this process there was also another member, wherein he insisted to have his right declared to the said Lady Margaret's moveable heirship. Alleged, by the act 53d Parl. 1474, she could have none, being neither baron, prelate or burgess. Answered, She was an Earl's daughter, and so a baroness; she was wife to a minister, viz. to Doctor Gilbert Burnet, afterwards a bishop, and she had a bond bearing infeftment in lands, though not actually taken. The Lords found none of these sufficient to give her heirship-moveables, unless infeftment had truly followed, though the brocard has been much extended from its original design; for now any tradesman infeft in lands will be reputed a baron quoad the effect of moveable heirship, or of being a baron's peer, to pass upon his assize; so much have we sunk and deviated from the meaning of that old maxim, when first introduced from the pares curiæ of the feudal law.
Fol. Dic. v. 1. p. 365. Fountainhall, v. 1. p. 692.
