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.
John Chapman v. Commissary Brysson
Date: 28 February 1711
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Bailie Brysson in Glasgow having left a good estate, without any children; Commissary Brysson's son, his cousin-german once removed, takes brieves out of the Chancery for serving himself heir to him before the Sheriff of Lanark. John Chapman, brother to Bailie Brysson's wife, had, by his sister's influence, prevailed with him, when on death-bed, to grant him a disposition; and finding he could not stop the service himself, being in no blood-relation to the defunct, he procures an advocation of the service, wherein he makes use of her Majesty's advocate's name, on this ground, that the Bailie had no friends that were able to instruct kindred to him, and so it was devolved to the Queen, tanquam hceres ultima. When the reasons of advocation came to be debated, Commissary Brysson craved to have it remitted back to the Sheriff. The advocate and solicitors appeared to have it advocated to the macers, and the Lords to name some of their number to assist them as assessors; and insisted on this ground, that the Commissary could not instruct the remotest degree of propinquity; and all that was trumped up was a declaration under the Bailie's hand, calling the said Commissary his cousin and apparent heir, without so much as telling the steps or degrees wherein the contingency lay; which emendicat paper can never be a document to prove sibness, to the exclusion of the Queen's right: and if he can instruct his blood, why should he endeavour to huddle it up before the Sheriff?
Answered,—Chapman has only brought in the Queen's advocate upon the stage to palliate his own by-ends. And in his imagination he sets up a man of straw of his own making, that he may the more easily pull him down; for they never designed to adduce that declaration as the only mean of probation to the inquest; though, by the Roman law, dulcissima filii nominatio was reputed a modus legitimandi,—Novell. 117, cap. 2; et Authent. Si quis C. de Liberis Naturalibus: But they will adduce a genealogical scheme, with every person's name and his marriage, up to the common root and stipes from whom they descended; so that the Queen has neither interest nor pretence, and is not competent, unless there were a donatar of bastardy or ultimus hceres competing; but Chapman, dreading the validity of his own right, is at the bottom of all, and has started thir needless difficulties; and none can judge it better than an inquest ex vicineto, to whom both parties were known.
The Lords thought that, if there were any real intricacy or dubiety, the Queen might compear, whether it were gifted or not, and had the same interest a donatar had; but found the pretence of an ultimus hceres very thin in this case, and remitted it back to the sheriff, with this instruction, that farther probation should be adduced of the propinquity of blood besides the defunct's declaration, and which the heir offered to burden himself with. And the Lords thought the Queen's name was only drawn in here to serve a turn, for Chapman's private design; and therefore refused to advocate the brief to the macers.
