Scottish Court of Session Decisions

Subject_1 BASTARD.
Subject_2 SECT. VI.

In what Cases a Bastard's Effects fall to the Lord of Regality.

Buchanan
v.
Campbell

1601. June.
Case No. No 12.

Lands or goods of a bastard, or person deceasing without heirs, pertain not to the Lord of Regality, unless specially expressed in his infeftment.

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Mr Johne Dalzell, and Susanna Buchanan his spous, havand be gift of our Soverane Lord, the escheit of all guddis and dettis, whilk pertenit to umquhile————Campbell, dochter to the said Susanna and umquhile Colene Campbell, bastard son to Archibald Erle of Argyll, procreat betwixt the said Susanna and the said Colene, as ultimas hæres to the said dochter deceiss, and without ony lawful airs, pursuit the Laird of Caddell, as aire be provision to the said umquhile Colene, for the soume of ane thousand punds, whilk the said Colene, be contract, had obligit him, his heirs and successors in his lands, to pay to the air's femell to be gottin betwixt him and the said Susanna, the soume of ane thousand pundis.—It wes alledgit, That his donatour could have no action upone his Majestie's gift, becaus the lands to the whilk Caddell succeidit, lay in the Regaltie of Argyll, and the persons dwelt thairin; and sua the gift appertenit to the Erle of Argyll be verteu of his regalitie.—It wes ansrit, That the gift of thingis falland be deceis of personis havand na lawful aires of thair awn blude as ultimus hæres, could not pertene to the Lord of Regalitie be the general privilege of regalitie, unles he wer infeft in that privilege per expressum, the sam being sua great ane richt, and sua deulie belanging to the King's crowne, that it could not be comprehendit under ane general disposition of regalitie.——Which reply the Lords sand relevant, and in respect thairof, repellit the exception.——Next it it wes exceptit, That this soume could not pertene to the donatour, becaus nather the King nor his donatour could be in ane better cais, as ultimus hæres, nor the defunct; and the defunct could never have had richt to the soume controverted, unles sche had been aire to hir father, becaus it wes providit to the aires-femell, and sche not being aire femell, had na richt; and consequentlie the King, as ultimus hæres, could have na richt.—It wes ansrit, That the provision wes consavit in favour of the bairns femell; and albeit sche wes not servit aire, yet the successour to the lands wes ordanit, be contract, to pay that soume for her provision, and the King had succeidit in her richt.——The Lords repellit the alledgeance, and sand that the donatour had richt.

Fol. Dic. v. 1. p. 93. Haddington, MS. No 649.