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The Duke and Duchess of Hamilton v Gawin Loudon. [1674] 3 Brn 46 (00 February 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Brn030046-0048.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
The Duke and Duchess of Hamilton v. Gawin Loudon
1674.
February.
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In an action pursued by the Duke and Duchess of Hamilton against Mr Gawin Loudon, as representing his father, who was one of the chamberlains of that estate, and had not made faithful count and reckoning; it was objected against the Duke's active title, that he had no sufficient interest; producing allenarly the commissary's license to pursue, without a decreet dative; for, though he was not obliged to confirm it till he saw if it was recoverable or desperate, yet he ought at least to be decerned in executor to Duke William.
I think this inchoat title was not sufficient to sustain his interest; and the offering to produce it cum processu should not serve the turn. Hence a compriser, pursuing an improbation of the rights of the lands, shall infeft himself after the summons of improbation, (for improbation of the right of lands cannot be pursued but by one that is infeft, and so it must be otherwise in improbation of bonds,) it will not accresse, or convalesce, or retrotract; but that summons will be casten. Hence a man pursuing for himself, and as assignee, the summons was casten on informality; because the assignation was found to be subscribed of a date posterior to the date of the summons; for the President called this filius ante patrem. It was decided in a case in 1669. Yet see Dury, 20th March, 1623, Heirs-of-line of the Lord Yester against the Lord Buccleuch. Vide infra, num. 574, § 9. [June, 1677.] See Dury, 4th February, 1630, Earl of Kinghorne. See the case of an inchoat title, and an apparent heir's calling for exhibition of moveable bonds, in the pursuit at the instance of Patrick Fyffe's bairns, mentioned alibi in a book containing miscellaneous observes. Vide infra, July, 1676, Laird of Drumailzear against his brother, the Earl of Twedale, No. 490.
