Earl of Nithsdale v. Robert Brown of Bishoptoun and His Lady
Date: 17 December 1713 Case No. No. 58.
Found in conformity to Ahannay against Aiton, No. 52. p. 15191.
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The Earl of Nithsdale having pursued a removing against Bishoptoun and his Lady, from certain lands set in rental by the pursuer’s predecessor to Homer Maxwell and his heirs indefinitely, upon this ground, that such rental doth last only during the joint lives of the getter and receiver; L. Aiton against Tenants, No. 24. p. 7191. voce Irritancy;
Answered for the defenders: Though a rental to a man and his heirs is not extended to heirs irredeemably so as to want an ish; yet it is by custom extended to the first heir; Earl of Galloway against Burgesses of Wigtoun, No. 25. p. 7193. voce Irritancy; Ahanny against Aiton, No. 52. p. 15191. and the Lady Bishoptoun is Homer Maxwell’s immediate heir. As to the decision betwixt L. Aiton and Tenants, it seems hard, and hath never been followed.
The Lords found that the first heir hath the benefit of this rental, and that it terminates with the first heir’s life.
