Scottish Court of Session Decisions

Subject_1 PROCESS.

Mr John Gouldie
v.
The Heir and Trustees of Murray of Cherrietrees

1752, Dec. 12.
Case No. No. 25.

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Mr Gouldie, as having a gift of ultimus hæres to the last heir of Maison-dieu, pursued declarator with reduction of a disposition to Murray of Cherrietrees, which came before me, and was fully litigated, and after some no-processes, determined both by me and the whole Court. I took the principal cause to report; and informations on both sides were drawn; but before report Cherrietrees died, and the process was transferred against his son. And when I came to make my report, a lawyer for the son appeared, and declared he did not represent, and was ready to renounce; upon which the Lords gave decreet for the pursuer, which bore in common form to be on my report,—it also mentioned the said compearance. On this decreet he pursued maills and duties against the tenants; and Cherrietrees having executed a trust deed, the cause was by them advocated, and the question was, Whether they could be heard after that decreet in foro, or whether it was a decreet in foro? I thought it was not, nor could not be so against the defunct, because there never was any decreet in his life, and not against the son, who was willing to renounce;—and accordingly, 28th November, the Lords found that the trustees might be heard, notwithstanding the decreet. Lord Advocate reclaimed, and insisted that it was a decreet in fore, the cause fully debated, and no more could have been said were Cherrietrees still alive; that by the regulations a party compearing cannot pass from his compearance, &c. But I observed, that in the question whether it was a decreet in foro, the argument would have been as strong if Cherrietrees had died before any debate in causa after or even during the debate about the no-processes; that if any new defence occurred to Cherrietrees, it was competent any time before decreet, but if it was a decreet in foro, the trustees were barred by competent and omitted; that probably the Court would not alter their opinion if nothing new was pleaded that was not in the former informations, (though in fact they never were reported by me,) but I thought they could not be barred by the decreet from pleading any thing, for that it was not a decreet in foro. And the petition was refused nem. con. 12th December 1752.

13th June 1753, Margaret Morison, an infant about 15 years of age, having succeeded to her uncle in the lands of Maison-dieu, and being an infant of a sickly constitution, disponed them to Murray of Cherrietrees, and died in two or three weeks. Professor Gowdie, her uncle, by her mother, applied to the Crown, and obtained a gift of ultimus hæres, and pursued reduction of Cherrietrees's disposition on death-bed and minority, which came before me first, as is marked supra, 12th December 1752. The defence is now taken up by Cherrietrees's trustees, who alleged, 1st, that though this was called a right as ultimus hæres, yet in reality it was no succession, the King was no heir, but quasi hæres, and had right to the estate only as bona vacantia, and therefore can neither reduce on death-bed nor on minority. 2dly, That the gift was obtained by subreption or obreption. On this report, we found unanimously, that the objection of death-bed was competent to the Crown's donator; and one consideration that moved me was, by our most ancient law, feudal rights could not be transmitted without consent of the superior, and therefore neither by testament nor on death-bed, not even in prejudice of the King. But we were more doubtful as to the reason of minority, and therefore did not decide it. And we found the qualifications of subreption or obreption condescended on not sufficient; but in this last Kilkerran differed. Another point was also stirred at the report, by the Lord Advocate, that the objection of subreption or obreption was not competent to one who derived no right and had no gift from the Crown; but as this point had net been pleaded before the Ordinary, nor reported, we did not decide it 31 st July Adhered unanimously.