Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Carnegie v. Charles Carnegie
Date: 29 July 1707
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Charles and James Carnegies, sons of the deceased Laird of Phineven. Charles takes brieves of the Chancery, directed to the sheriff of Forfar, to serve himself heir to his father, on his mother's contract of marriage. James gave in a bill of advocation, craving the service might be advocated from the sheriff to the macers, upon irritancy, in respect their father, knowing the incurable palsy his eldest son laboured under, that he was neither able to speak nor walk, had disponed his estate to James, his second son, as most fit and capable to represent him, with the burden of an aliment to his elder brother, and wherein the second was infeft: so this service was designed only to be a title to vex his second brother by reductions and other processes; which ought not to be indulged nor encouraged.
Answered,—My right of succession, jure sanguinis, can never be taken from me: However my father upon misprision has past over me, yet this cannot impede my service; for, 1mo, My father died last vest, and you are only infeft since his death; 2do, Your right is base, and so I must be served in the superiority, if I get no more; 3tio, My infirmity is but temporary, and may be cured; and so the cause of my father's preterition ceases; and I may have children in marriage, who cannot be prejudged.
Replied,—The base infeftment cannot be confirmed, which cuts off your right of superiority; but, to take off all pretences, they are willing to hold him as heir and infeft, and to produce the disposition from the father, and debate instanter; and, if the elder brother reduce it and prevail, he offers to dispone the estate to him: though the father is the fittest judge of his children's merits, and has kept within the line, he being a son of the same marriage; whereas, the preferring a son by another bed would not be so favourable.
The Lords, in respect of the offer to sustain his title, advocated the cause to their macers, they signing their offer; and named assessors for directing them, if any difficult points of law occurred in the service.
