Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Captain Peter Rollock
v.
Sir William Stuart of Gairntilly, &c

1636. July.

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There was a contract passed betwixt Sir Walter Rollock, and Sir William Ruthven of Banden, by which the said Sir William disponed certain lands to the said Sir Walter and his heirs. Captain Peter Rollock doth serve himself heir-general to the said Sir Walter, his father; and thereby, having right to the said contract, intented summons of improbation against Sir William Stuart of Gairntilly, and others, that pretended right to the said lands. Alleged against the pursuer's interest, He could not compel them to produce, as heir to his father; because they offered them to prove, that umquhile Andrew Rollock, elder brother to the pursuer, was served and retoured general heir to his said father, Sir Walter, whereby the right of the contract being established in his person, it behoved to pertain to his heirs, and not to his father's heirs; so that, unless the pursuer were served heir to his brother, he could have no right to the said contract; and consequently could not force them to produce. Replied, 1mo. This defence was not competent to the defenders, except they did allege some right in their person flowing from the said Andrew; 2do. Andrew's general service, there having no other thing followed upon it, would never impede his brother to serve himself general heir to his father, and claim right to the contract that way, as well as if he had been served heir to his brother; for the king's advocate and Mr Thomas Nicolson, (who were for the pursuer,) contended that a man might have more general heirs than one; and that if he, who was first served, did no further on his service, he that after him served himself to that same predecessor, would have right to any contract, reversion, &c. made in that predecessor's favours; because a general service was but actus inchoatus et non completus, and it is only in special services to lands that one cannot leap over him that was last retoured, but holds not in general services. Sir Lewis Stuart, on the other part, for the defenders, maintained, that a general service was actus consummatissimus in suo genere, and did establish the right of contracts, &c. in the person of him who was so served, as perfectly as any special service did settle the right of lands on any one; and the right being once established in him that was served, it was impossible that it could pertain to any other but to his heirs; and instanced, if Andrew had creditors, the right of the libelled contract doubtless would pertain to them, and not to the pursuer as heir to his father. This was not decided by the Lords; for the defenders took the pursuer away by another allegeance, That the right of this contract was disponed to them by Andrew: But the whole Lords, in effect, were of the mind that the allegeance could not be repelled, it being exclusivum juris agentis; and that after it was twice or thrice heard in their own presence, in the beginning of July 1636.

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