Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Peadie
v.
Peadie

Date: 4 February 1743

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[Kilk., No. 2, Heirs-Portioners ; Elch., No. 1, ibid.; C. Home, No. 226.]

In this case, the Lords found that the principal messuage, though neither tower nor fortalice, belonged to the eldest heir-portioner as a præcipuum, without any recompense or equivalent to the rest. Here it was allowed by both parties, 1mo, That a tower or fortalice went to the eldest heir-portioner without any recompense, because towers and fortalices are considered as accessories of the jurisdiction, Instrumenta Jurisdictionis, as Craig expresses it. Besides, towers and fortalices were inter regalia; they belonged to the King, who had a right to use them at any time for the defence of the country, so that the private persons who dwelt in them were little more than heritable keepers of them ; and as it required a considerable expense constantly to keep them in repair, for that reason they were adjudged to the eldest heir-portioner without any recompense to the other sisters. 2do, It was allowed that the principal messuage did of right belong to the eldest sister, and that she had more than an option or jus eligendi; the only question was, whether she was obliged to give an equivalent to the other sisters.

The rationes decidendi were, 1mo, That it was so decided, anno 1707, Cowie against Cowie ; and in a question so arbitrary, and where there was no inherent iniquity on either side, the decisions of the Court ought to make law: for this reason, both the President and Elchies were for the decision, who otherwise would have been against it. 2do, As it is allowed, that the principal messuage belongs of right to the eldest sister, it would require very uniform custom, or even the authority of a statute, to make her pay for what is her own ; especially if it is considered, that, seeing the house belongs to her of right, she cannot oblige the others to take it off her hand, and so is under a necessity to purchase a house, perhaps at the whole value of the estate. 3tio, It is an indivisible subject in its nature, as much as a superiority, jurisdiction, or title of honour; nor is it an answer to say, that it may be valued in money, for so may a superiority, or jurisdiction.

On the other hand, it must be allowed that there was the authority of all our law-books from the earliest times,—not only our oldest law books, such as Regiam Majestatem, Skene, Craig, Hope, but likewise the more modern, if rightly understood, such as Stair and M'Kenzie. There were likewise alleged decisions on that side, particularly the 2d December 1669, Carrubber against Boyd, observed both by Stair and Gosford, though somewhat differently.