Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INNOVATION.
Subject_3 The Acceptance of a new real Security, without Renunciation, does not innovate the former one.

Elizabeth Anderson
v.
James Rutherford

Date: 25 February 1785

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[Fac. Coll. IX. 320; Dict. 7069.]

Braxfield. Were an infeftment once put an end to, it would be dangerous to the records to raise it up again. But here the infeftment was not properly put an end to; all that was done was the delivering up the instrument of debt. The act of retiring is not sufficient without a discharge and renunciation. Suppose a creditor of Anderson should adjudge the heritable bond, and take infeftment, this would be good, notwithstanding all that has happened.

Eskgrove. The case of the Duke of Norfolk does not apply. In order to extinguish an heritable title, actual delivery is not sufficient;—there must, besides, be intention, title, and proper form. Now, Elizabeth Anderson did not mean to renounce: she was only an apparent heir, she could not renounce; nor did she. Had Mr Rutherford lent his money on the faith of the record, the case would have been more favourable.

Justice-Clerk. On the face of the record Elizabeth Anderson is creditor in two heritable debts. It is only from her own acknowledgment that she appears to be creditor in one debt only. Her acknowledgment ought not to cut her out of both.

On the 25th February 1785, “The Lords preferred Elizabeth Anderson;” altering the interlocutor of Lord Hailes.

Act. G. Buohan Hepburn. Alt. W. Nairne.