Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CLAUSE-HERITABLE AND MOVEABLE.
Subject_3 A Deed containing dispositive words, held to be a Disposition and not a Testament: but the words, “Means and Effects, Heritable and Moveable,” in said Deed, found insufficient to convey a proper heritable subject.

Alexander Bower, and Others,
v.
Rachel, &C Browns.

Date: 26 January 1770

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[Faculty Collection, V. 32; Dictionary, 5440.]

Auchinleck. This deed is so devised as to carry every thing belonging to the deceased. Means and effects will comprehend a house.

Hailes. I doubt as to that. Means and effects cannot, in propriety of speech, comprehend any thing but moveable subjects, and nomina debitorum. The words do not, even in vulgar speech, comprehend subjects strictly heritable. No man ever reckons his house among his effects of any kind. Means,—from the French, moyen,—is no more than that whereby one is enabled to acquire a house or lands; but never implies the acquisition itself.

Monboddo. Here are words of style, well known, and commonly used. They do not apply to lands or to houses.

Coalston. The deed will not carry lands: Had that been the purpose of it, it would have begun with lands. I should have doubted of the deeds carrying the adjudication, were it not for the case Marshall Wade's Succession, which seems in point.

Pitfour. There is no doubt as to heritable bonds and adjudications being carried; for the deed mentions heritable and moveable,—and, without prejudice of the generality, a bond of L.2800. I doubt as to land property being disponed. It is a maxim, “that, in virtue of general clauses, heritage is not understood unless expressed.”

Kaimes. One thing to intend, another to operate, especially where the deed executed is a donation to the prejudice of the heir. “Heritable means and effect” is not a clause of style. It might, however, comprehend the house, had there been any previous words from which the clause could have been explained.

Gardenston. The purpose was to convey his whole estate, and I think there are words sufficient to convey the whole,—the house as well as the adjudication.

On the 26th January, 1770, the Lords found, that Dr Brown's settlement included the heritable bonds and the adjudication,—but not the house.

Act. R. M'Queen. Alt. D. Rae. Reporter, Justice-Clerk.

Diss. As to house, Auchinleck, Gardenston.