Scottish Court of Session Decisions

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

Ross
v.
Monro of Newmore

Date: 18 November 1766

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[Fac. Coll. IV. No. 45.]

In this case the Lords found that an heir of entail, who was obliged to bear the name of the family, under an irritancy, and who had wilfully given up that name and taken another, in order to qualify himself to enjoy another estate, entailed under the condition of bearing a particular name, and that only, might be restored against the irritancy incurred, upon his offering at the bar, when the declarator of irritancy is insisted upon, that he was willing to reassume the name he had quitted; dissent. tantum Auchinleck, who thought that at this rate he might lay down and take up the name as often as he pleases, and whenever the irritancy was pursued against him he had no more to do but to offer to purge at the bar. And no doubt this would be the consequence if the law be that a conventional irritancy such as this may be purged at the bar as well as a legal irritancy. But I think the decision can only be defended on this principle,—that the Court has exercised its nobile officium, and interposed ex æquitate, to do, what indeed the Court has never done in any instance before, but which may appear equitable, namely, to forgive the first offence, though wilful and premeditated, without the least pretence of error or mistake. But several of the Lords declared that they would not have the same indulgence for a second offence.