Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Loud Napier,
v.
Captain Livingston

Date: 20 July 1762

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This case was mentioned before, 2d November, 1761; today the Lords determined several points in it concerning entails. And, in the first place, it was determined unanimously, dissent, tantum Kaimes, that a man having only a personal right to lands may nevertheless make an entail in terms of the act 1685 ; and upon searching the records it was found, that a great number of estates, and those the greatest in the kingdom, had been entailed in that way. The second point was, Whether an entail could be recorded after the death of the maker?—and it carried that it could;—dissent. Alemore and Justice-Clerk ; and at the instance of a remoter substitute, upon a summary application, as had been decided before in the case of the tailyie of Dunsinnan, March 1757, and in two or three other cases.

There was a third point determined concerning an objection to a sasine, which was, that in the beginning of the sasine John Bryce is named as the procurator for the person who was to be infeft, but the symbols are delivered to John Burn, who is there called the foresaid procurator. The objection was overruled by a considerable majority, dissent. Preside; and the Lords were of opinion, that it was only a mistake in the name, and that the reference to the procurator first named fixed the person. Some of the Lords too observed, that the principal sasine was here lost, and that the tenor was made up from the copy in the register, where that mistake might have been made in transcribing.