Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Eleis of Southside
v.
Dr Carse.

1670. June 21 and 29.

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June 21.—This is a pursuit for payment of a debt against this defender, as representing the debtor; 1mo, In so far as he being his apparent heir, he meddled with his charter-kist, which, by the constant practice, infers gestion. 2do, As heir, he made a revocation of all deeds done by the debtor, his predecessor, which might tend to his prejudice. 3tio, He called the comprisers to count and reckoning, offering to prove them paid by their intromissions, and more than paid; and so craved the superplus to be given back to him.

Against his meddling with the charter-kist, it was alleged, 1mo, That Dr. Carse, (though a Scotchman,) yet, from his infancy almost, having been bred, and having resided in England, (being one of the king's chaplains,) upon the death of his friend, he came down to Scotland; and being altogether ignorant of our laws and customs, he simply, without any intention of being heir, took inspection of some writs that were in the defunct's charter-kist, and this, within the year allowed to apparent heirs for deliberation: and within the year also, he offered the charter-kist back to those who had interest, which they refused. Which kind of meddling being so innocent, and also within the time prescribed by law, can in no equity nor reason make the Doctor liable to the defunct's debts. To the second non relevat a revocation, unless ye will say that something followed thereupon; vid. a summons of reduction, &c. To the third, his calling the other comprisers, &c. can never bind on him a passive title, because he did it by virtue of a comprising of the reversion, the right whereof was established in his person.

To this it was replied,—1mo, That ignorantia juris neminem excusat. 2do, He can never pretend he meddled only for inspection; seeing he should have done it modo et via juris, and should have had a sentence of a Judge to that effect, and not have done it at his own hand. 3tio, It were a most dangerous thing to find meddling with a charter-kist, (they offering it back, though within the year,) not to infer a passive title; seeing there may be none that knew what was in the charter-kist, and by this means an apparent heir might abstract the very marrow of it, and yet none should be permitted to quarrel him therefore. To the 2d, about the revocation, it deserves no answer. To the 3d, offers to prove, in that count and reckoning, he received that to which he could lay no other title nor claim but as heir to the defunct, who had the right of reversion.

Act. Eleis and Lockhart. Alt. Sinclair. Advocates' MS. No. 30, folio 76.

1670. June 29.—In the cause Eleis and Carse, mentioned before on the 22d day, referente Domino Stair, found, That his intromission with the charter-kist (proven by his receipt thereof granted to my Lord Arniston, from whom he borrowed it,) was sufficient to infer a behaviour.

Advocates' MS. No. 40, folio 77.