Scottish Court of Session Decisions

Subject_1 PAPIST.

Maxwell
v.
Maxwell

1740, Jan. 22.
Case No. No. 2.

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The Lords sustained the title notwithstanding the objection. There were two questions; First, Whether there can be an adjudication against the Protestant heir upon a charge to enter, or if the benefit given by the act of Parliament can only be by service? 2dly, Whether this point is already determined in this cause? As to the first the President and Dun were clear that there could be no adjudication, but the rest seemed to be of a different opinion, and I own I had difficulty whether there could be an adjudication at the instance of a common creditor, and had not formed a judgment upon that point; but I thought where such adjudication was on the apparent heir's bond to make up a title to the estate, it was competent, the act allowing his title to be made by service or other legal means. As to the second, though the point had been determined formerly, and in the case of Murray of Conheath it was even found that an adjudication against the Popish heir was null, and though both the objections and interlocutors in this cause plainly supposed it so, that sustaining the objection would make the former procedure ridiculous, yet the abstract point was not formally determined nor indeed objected:—therefore we waved finding it directly res judicata, but sustained the title in general as above.