Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

William Nairne
v.
Sir Thomas Nairn of Dunsinnan

Date: 10 March 1757

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This case is reported in Fac. Col. (Mor. 15605.) Lord Kilkerran'S note upon it is as follows :—

“Lord Strathnaver brought an action against the Duke of Douglas, to record the tailyie of Rosebank, made by the Countess of Sutherland. There are also other like cases, which have been registered long after the death of the granter, such as the tailyie of Bargany, at the suit of Mrs. Joanna Hamilton, the grandchild of the maker of the entail.

In the tailyie of Lee, made by Cromwell Lockart, the first institute was Richard, the second James, the third John Lockhart of Castlehill; and the son of John, after the death of all before him, then a minor, presented the tailyie for registration, which was ordered, and this was in 1694.

In the tailyies of Rosehaugh, Scot of Galla, of Kinglassy, of Ruthven ; ergo, as the law does not reprobate the registration of tailyies after the death of the granter, as being only for publication, so the practice confirms it; so much for the general point.

And as to the second, whether competent to a remoter substitute, as by the common law, every substitute has a right to succeed in his order, so the statute has required that to make it good, it should be recorded, every substitute has a right to apply for that; this was found in the case the tailyie of Rosebank above mentioned—the case of Nestshields—the case of Drum. In short, it was never doubted. The registration is purely ministerial, it preserves the right against creditors, and against forfeitures, and is maximœ utilitatis, and as for the necessity of a process, the answer is, that it is a matter voluntariœ jurisdictionis.”

“March 10, 1757.—After much arguing on the bench, the Lords appointed the tailyie to be recorded.”