The act 1661 not extended against the husband of the apparent heir. See No 52. p. 5310.
Click here to view a pdf copy of this documet : PDF Copy
In a competition between John Borthwick and the Earl of Winton, as creditors on the estate of Adingston, John objected against the Earl's apprising, That, by the 62d act 1661, all apprisings acquired by apparent heirs are redeemable from them within 10 years after the purchase; and ita est, this apprising is bought in by the Earl, the apparent heir's husband, and is all one as if a tutor, curator, or other administrator, should acquire it for their minor's behoof; and therefore as it is redeemable from the apparent heirs themselves, so also from their husbands, especially considering the same is provided to her heirs. Answered, Laws are not to be extended de casu in casum, especially in correctory acts of the former common law, and so being stricti juris, and the husband not mentioned in the act, it cannot be extended to his acquisition, unless they will subsume that he purchased in the apprising with the apparent heir's means; and non refert, that the apprising will devolve and descend to her son and heir, for he does not succeed qua heir to her, but as my Lord's heir; and the Lords have refused to extend the act to the case of husbands, 21st February 1673, Richardson, No 52. p. 5310; and 13th June 1674, Richardson, No 54. p. 5312.; and the parallel case of a goodsire's buying in a comprising, and disponing it to his grandchild, was found to make it redeemable, Maxwell of Pollock, No 51. p. 5309.; Sir George Monro, No 59. p. 5317. —The Lords were satisfied of the hardship in this case, and that there was paritas rationis to redeem from an apparent heir's husband, as well as from herself; but the same being omitted in the act, and already decided, they would not extend it till the same were re-considered in Parliament; and therefore repelled Borthwick's allegeance, and found the Earl's apprising not redeemable.
Fol. Dic. v. 1. p. 360. Fountainhall, v. 2. p. 100.
