Scottish Court of Session Decisions

Subject_1 CHARGE TO ENTER HEIR.

Finlason
v.
Wemyss

Date: 11 December 1638
Case No. No 5.

An order of redemption may be used against an apparent heir, without necessity of a charge to enter heir.

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The lands of ——— being wadset to Alexander Wemyss and Mr John Wemyss, under reversion; which reversion being comprised by Alexander Finlason, creditor to him who gave the wadset; whereupon order of redemption being used against the said umquhile Alexander Wemyss in his own lifetime; who deceasing before declarator, thereafter summons and declarator of redemption is raised against the eldest son, and apparent heir of the said umquhile Alexander Wemyss, upon the same order used against umquhile Alexander, before his decease; wherein the defender compearing, alleged, That this order could not be sustained and used against Alexander, who is how dead, to be declared against his apparent heir, against whom it was not used, but that he ought to be of new warned, and ought to be charged to enter heir to his father for that effect.——The Lords repelled this allegeance, and found, That the order used against the father, who was dead since the using thereof, might be lawfully craved to be declared against his apparent heir; and that there was no necessity of any new order to be used against him, or that he needed to be charged to enter heir, seeing redemptions might be used from apparent heirs. Item, The order being quarrelled, because it was not used conform to the order agreed upon, and prescribed in the reversion, which appointed premonition to be made at the parish church upon a Sunday before noon, in time of Divine service, and that the reversion should then there be read; and the other replying, That he had done more; for that clause being appointed only, that the party might be certiorate of the deducing of the order, he had made him more certain, by premonishing him personally apprehended, which was a more assured way of knowledge than if it had been done at the kirk. This allegeance was also repelled, in respect of the personal premonition; neither was it respected, that the defender alleged, that reversions are stricti juris, and that conditions agreed upon betwixt parties ought not to be changed; and 3dly, It being alleged, That the order could not be sustained, because it was not used by a procurator, having power of the party to use the order, as is ever observed in all the like cases; but it is only used by a messenger, by virtue of the Lords' letters, passing upon a bill given in to the Lords, at the instance of the party who comprised, whereby he craved warrant to the messenger, to make the said premonition, and use the said order; which being sought by the party, and granted by the Lords, is against all form and practice, and ought not to be sustained, but must be done poriculo impetrantis;——The Lords also repelled this allegeance, in respect the party ratified and approved the order, and allowed the same: And the Lords found, That they would not cast nor avert the order for this alleged defect, nor for any other of the alleged defects in the foresaid allegeances; but this is not in use to be done in redemptions, and I remember not of any other used in this manner. See Redemption.—Death.

Act. Nicolson & Sibbald. Alt. Rollock. Clerk, Gibson. Fol. Dic. v. 1. p. 130. Durie, p. 866.