Scottish Court of Session Decisions

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

Brebner
v.
Law

Date: 13 February 1756

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[Fac. Coll. No. 187.]

In this case the Lords allowed the Protestant heir to serve, and found that the Popish heir had forfeited his right, although he could not take the formula precisely in terms of the statute; that is, either before the Lords of his Majesty's Privy Council, or the presbytery of the bounds where the party resided; because there was no Privy Council now in Scotland, and the Popish heir in this case resided abroad.

In this case also, the Lords found that the Protestant heir might serve to a man who had only a right of liferent in his person, having executed a procura-tory of resignation, which he had right to, and taken a charter to himself in liferent, and his son, the Popish heir, in fee; so that the Protestant heir, overlooking the infeftment altogether in favour of the Popish heir, as being null and void, might, by a general service, carry the procuratory of resignation as if it had been still unexecuted, and this without any previous declarator of the nullity of the infeftment, only a declarator repeated with brieves of the disability of the Popish heir to succeed. Both these points the Lords determined unanimously.