Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo .
Subject_2 COMPLAINT FROM STIRLINGSHIRE.

Grant of Ballendalloch
v.
Antonio, Count Lesly

Date: 25 November 1757

Click here to view a pdf copy of this documet : PDF Copy

In this case the Lords unanimously found, That it was no bar to the service of a Protestant heir that the Popish heir had made up titles and was infeft; and that, this notwithstanding, the Protestant heir could serve, without necessity of setting aside the right of the Popish heir by a reduction and declarator, and thereby making the fee void; because the right of the Popish heir was, by act of Parliament, null and of no effect, so that the Protestant heir might serve as if the Papist was naturally dead.

The President said, That he would have had some difficulty in the case, and have thought that a declarator was necessary, as in the case of the irritancy of an entail, or a forfeiture by the Scots law, but that the practice had been otherways, particularly in the case of Law, where the very same objection was made, and repelled in the last resort. I think it makes a difference in the case, that the Popish heir in this case had never any legal right to the subject; because he was after fifteen years before he succeeded, consequently the estate never vested in him, and there was no room for any declarator of irritancy; whereas, if he had been under fifteen when he succeeded, the estate would have vested; but his right would have been irritated by his not taking the formula when he came to be fifteen, and, in that case, I think there would have been some more difficulty in allowing the service to proceed without declarator of irritancy.