Scottish Court of Session Decisions

Subject_1 EXHIBITION AD DELIBERANDUM.
Subject_2 SECT. I.

Competent to all sorts of heirs.

Pitcairn
v.
Murray

1588. December.
Case No. No 1.

An heir apparent of conquest may pursue exhibition ad deliberandum.

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There was the dochters of umquhile Henry Pitcairn, appearant of Forfar, that perseuit Euphan Murray, Lady Rossyth, and spouse to umquhile Robert Commendator of Dumfermline, for exhibition and deliverance of ane reversion made by Mr John Pitcairn of Kirk Forfar to his brother-german the said umquhile Mr Robert, and they qualified their interest as nearest and appearant heirs of conquest to the said umquhile Mr Robert. It was alleged be Mr John Pitcairn, maker of the said reversion, that they could have no action against him as appearant heir of conquest, because they were not servit aires, nor yet shew any thing that they were aires of conquest, for there might be bastardie objectit against them, and against the said Mr John, who was nearest heir of line, they could have no process except they show something that they were declarit aires of conquest. To this was answered, quoad in hac actione ad exhibendum, and for deliverance of evidents, it was sufficient to allege that nakedlie they were aires of conquest, whereof the daily practick an appearant heir of line or conquest may perseu for exhibition and deliverance of evidents to the effect he may be servit heir. The Lords found, that they needit not to show where he was heir of conquest, but it was sufficient to name himself in the summons, heir of conquest.

Into the foresaid action betwixt heirs of umquhile Henry Pitcairn appearant of Kirk Forfar, and dame Euphan Murray, Lady Rossyth, and Mr John Pitcairn of Forfar, for his interest, anent the deliverance of the reversion of the lands of ——— and other lands specified in the said reversion, it was allegit be Mr John, that the said reversion could naways appertain to the dochters of Henry, be reason of conquest, because the law and right whereupon they might found the conquest, was of the law of the books of majesty, where it is treatit of the nature of conquest, the whilk were only meant as the express words of the same buir of them qui habentes terras sive tenementa, and so could not be extended to writs, such as obligations, contracts, and reversions. To the quhilk it was answered, that reversions being heritable, behoved to be ruled according to the nature of the infeftments, whilk are heritable titles, and as it was practised of before betwixt the executors of Mr Andrew Herriot and the executors of John Fairlie, in the whilk decision it was fund that the law of conquest aught to have place in sicklike titles, and might be extended to heritable contracts, bonds, and obligations, and where any thing was destinat to any heritable use. The Lords, after long reasoning, found that the said reversion aught to be repute and holden as conquest, and so the airs of conquest had good action to purseu for deliverance of the same, as appertaining to them be reason of conquest. Nonulli in contraria fuerunt opinione.

Fol. Dic. v. 1. p. 283. Colvil, MS. p. 433.