Scottish Court of Session Decisions

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

Sir John Malcolm of Innertiell, and Michael Malcolm of Balbedie,
v.
Her Majesty's Advocate and Solicitors

Date: 19 June 1712

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John Maitland of Eccles having, in anno 1661, obtained from King Charles the Second, a gift under the Privy Seal, of the feu-duties and other emoluments of the ministry of Scotlandwell, and some other chaplainries and altarages, during all the days of his lifetime, and after his decease, to Maitland, his son:—This gift was conveyed by progress, from John Maitland to Sir John and Michael Malcolms, who pursued the feuars of Scotlandwell for bygone feu-duties.

Compearance was made for the Queen's interest, by her Majesty's Advocate and Solicitors, who alleged,—1. That the gift was prescribed, never having been clothed with possession by John Maitland, the obtainer, or his assignee, in the cedent's lifetime: And any possession since his death, cannot come in computo to hinder prescription;—seeing the gift died with the cedent, the blank therein not being filled up by him who only had power to do it. 2. Et separatim, this gift being expede through the registers, and at the Privy Seal, in favours of John Maitland of Eccles, and after his decease, to Maitland, his son, the name of no particular son of Eccles's could be thereafter filled up therein. 3. Esto, the recording of the gift blank, did not take away Eccles's son's right, this son is presumed in law to be the eldest son and heir living at the date of the gift. Now, the said eldest son having died before the father made the assignment, and the father having never filled up another son's name, the blank right, which neither the presumption of law, nor Eccles's election doth supply, is determined and expired. 4. Suppose the blank could imply a power in favours of Eccles to insert any son therein he pleased, that power of election fell with him, and is not competent to his assignee.

Answered for the pursuers,—Prescription is sufficiently interrupted by the assignee's possession. 2. The second objection would have some weight, if the blank in the gift were an absolute blank, without any designation to demonstrate the person; but the person being demonstrated by the character of son to such a man, it is most probable, that seeing Eccles had several sons at his obtaining the gift, the king intended, by leaving the son's name blank, to have the grant pass to the longest liver of the sons. 3. Albeit the right of primogeniture prevaileth in succession, it hath no prerogative in grants of this nature. 4. The assignee, as procurator in rem suam, hath the same power to fill up the blank with the name of any of Eccles's surviving sons, as the cedent might have done.

The Lords found, That any possession by Maitland of Eccles, or his assignee, within forty years, interrupts prescription. And found, That the gift in favours of Maitland of Eccles, and his son, became not extinct by the father's death, without filling up the blank; but subsisteth in the person of the son now alive.

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