Sir Andrew Cathcart's Trustee, v. Earl of Cassillis
Date: 24 November 1807 Case No. No. 2.
Decision that a general service as heir of line and heir-male is equivalent to a service as heir of provision, where it appears from the service that the party serving had both characters in him - reversed.
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This case is already reported, 16th November 1802, No. 29. p. 14447.
On appeal to the House of Lords, that Honourable House pronounced this judgment:
“It is ordered, &c. that all the interlocutors complained of in the said appeal, so far as the same relate to the lands and subjects contained in the charter of 1774, or in any similar titles, be, and the same are hereby affirmed: And it is further ordered, that the cause be remitted back to the Court of Session, to review all the interlocutors as far as they respect the effect of the service of Earl David in 1776, with regard to the lands of Enoch and Little Enoch, the lands of Portmark and Polmeadow, the tenements of Maybole, and teinds conveyed by Crawford of Ardmillan, or any other lands or subjects, the title to which is in dispute in this cause, if any such there be, not ruled by the foresaid affirmance; and to hear the parties again as to the effect of the said service as to the said lands and teinds, and as to the right to the said lands and subjects, and to do thereupon as to the Court shall seem meet.”
When the cause came back to the Court of Session, on a petition by Lord Cassillis, to have the judgment of the House of Lords carried into effect, memorials were ordered on the points remitted. The argument in these, so far as it was different from that already stated, run chiefly on the extent of the remit. On advising these memorials, the interlocutor of the Court was, (10 Feb. 1807,) “They find that Earl David's general service in 1776 was not a service as heir of provision, to connect him with the settlement in 1748, or with any similar deed of provision or settlement, and consequently was not sufficient to carry the subjects which were specially provided by any such deeds, and were not contained in the charter 1774, or in any other title deed or charter of a similar nature: Find that this description applies to the lands of Enoch and Little Enoch, the lands of Polmark and Polmeadow, the tenements of Maybole, and the teinds conveyed by Crawford of Ardmillan, and that they were not carried by the general service: Therefore sustains the reasons of reduction as to these subjects, and, so far, alter their interlocutor of 16th November 1802, repel the defences, and reduce, decern, and declare in terms of the summons.” And to this interlocutor, on a reclaiming petition and answers, 24th November 1807, the Court adhered.
Act. Tho. W. Baird.W. Wallace Brown, Agent.
Fac. Coll. No. 9. p. 30.
