The heir has right only to a single horse, and having got an ox and a cow, he is not entitled to a bull.
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William Skirving, as heir of James Skirving his brother, intromitted with part of his moveable effects. David Hepburn, in right of his wife, who was sister of James, and one of his nearest in kin, brought an action against William, to make him account for her share of the executry of her deceased brother.
In accounting the defender insisted, that he was entitled to retain, as heirship moveables, a plough of horses, and an ox, a cow and a bull.
The pursuer denied his right to a bull, and quoted the following authorities, in order to show that he was only entitled to one horse; Balfour's Practics, p. 234.; 1474, c. 53.; 10th November 1575, Lord Drummond, No 4. p. 5386.; Erskine, b. 3. tit. 8. § 17.
The defender, on the other hand, argued, 1mo, That the heir was entitled to a yoke of oxen; Stair, b. 3. tit. 5. § 9.; Bankt. b. 3. tit. 4. § 6.; and that Erskine, b. 3. tit. 8. § 18. considers a yoke to be ‘as many as make a plough,’ and that therefore, from analogy, he was also entitled to a plough of horses; Stewart's Answers to Dirleton, p. 214.
2do, That he was entitled to the ‘best of ilka thing,’ and consequently to a bull, as being essentially different from an ox.
The Lord Ordinary repelled the defender's claim to a bull, and found in respect of Balfour's Practics, p. 234.* that in virtue of his right to heirship moveables, he can claim only one horse.
A reclaiming petition against this interlocutor was refused, as to the defender's right to a bull, and ordered to be answered respecting the claim to a plough of horses. At advising the cause, it was
Observed on the Bench: Although the heir is entitled to two oxen, it does not follow, that he can also claim two horses. When heirship moveables were first introduced, oxen were used only for draught, and a single ox therefore would have been of little service. But a single horse must have been always useful for many purposes.
The Court, with only one dissenting voice, adhered to the Lord Ordinary's interlocutor.
Lord Ordinary, Dreghorn.Act. Hay.Alt. Bell.Clerk, Sir Fa. Colquhoun.
Fol. Dic. v. 3. p. 264. Fac. Col. No 64. p. 141.
