Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Walter Williamson of Cardrona
v.
Thomas Thomson, Writer in Edinburgh

Date: 16 July 1708

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Thomas Williamson, as apparent heir to Thomas Williamson, merchant in Peebles, having disponed some tenements of land there to Thomas Thomson, without a procuratory to serve him heir to his predecessor; and, thereafter, disponed the same to the deceased William Williamson, sheriff-clerk in that town, with a procuratory to serve him heir: Thomas Thomson applied to, and required John Frier, bailie in Peebles, to cognosce Thomas Williamson, his author, heir to his predecessor; and, thereafter, to infeft himself upon Thomas Williamson's disposition : which the bailie refusing to do, Thomas Thomson protested against him for cost, skaith, and damage, and took instruments, September 26, 1707. Thereafter, Mr. Walter Williamson of Cardrona, son to the deceased William Williamson, was infeft in the lands aforesaid, as heir to him, after cognoscing Thomas Williamson heir to his predecessor; and raised a declarator of his own right, with a reduction of the disposition to Thomas Thomson.

answered for Thomas Thomson,—Albeit Cardrona was first infeft in the subject under debate, yet his instrument against the bailie being prior to Cardrona's seasin; and all that a prudent man could do to expede the first infeftment, was, in the construction of law, equivalent to infeftment; and, therefore, a ground of preference to Cardrona, who got the start of him only by the bailie's partiality.

Replied for Cardrona,—The bailie was in the right, not to comply rashly with Thomas Thomson's desire, because of the dangerous consequence of infefting any person as heir to his predecessor, which subjects him to a passive title; and because of the want of a procuratory for that effect.

The Lords preferred Cardrona; in respect that the disposition in his favours bears a procuratory for serving the disponer heir to his predecessor in the subject disponed, and Thomson's disposition bears no such procuratory or warrant; albeit it was alleged for Thomson, that the disposition in his favours implied a warrant for serving the disponer heir to his predecessor, in the subject disponed.

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