Scottish Court of Session Decisions

Subject_1 CITATION.
Subject_2 SECT. XV.

Citation in Declarator of Escheat.

Seaton of Meldrum, Supplicant

Date: 21 November 1626
Case No. No 65.

Found, in the last paragraph of this case, in conformity with No 63. supra.

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

A supplication being given in at the instance of —— Seaton of Meldrum, making mention that he had raised brieves for serving of himself heir to umquhile Mr George Seaton; therefore he craved warrand from the Lords to the persons of inquest, for dispensing with the rebellion of the said umquhile Mr George, and that they should proceed in the service of the said brieves, notwithstanding that he died rebel, and was at the horn; and this was desired, in respect of the common clause of all brieves, bearing, To cognosce that the defunct died at the faith and peace of our Sovereign Lord, &c. This bill was refused, because the Lords found, that it was not proper to them to dispense with hornings or rebellion, for that was not suæ jurisdictionis, but only imperii et potestatis regiæ; and that it was only proper to the King to dispense therewith, albeit of reason such dispensations are unnecessarily sought, seeing the persons of inquest are ever in use to serve, notwithstanding that the defunct, to whom the service is sought, died rebel; and if that should be found to be a fault of the service, and of the retour following thereupon, many services would fall; for by this proceeding of the service none is prejudged; but, by the contrary, the heir served is liable to the creditors for the defunct's debt, and for any thing for which he was rebel; only the doubt may be, if an irresponsal person shall be served heir, and yet whether he be responsal or not, that hath no coincidence with the case foresaid, and makes nothing concerning the defunct's rebellion, either to help or hinder the dispensing therewith, which was desired: So the Lords thought it needed not to be craved to be dispensed with, in regard of the foresaid clause, by reason that clause was to be understood of forefaultries, which made forefaulted persons to be repute to have died, not at the faith and peace of the King, and not of common rebellion and horning. See 19th June 1630, E. Crawfurd, Durie, p. 520. voce Persona Standi.

In special declarators, after the general declarator, the rebel needs not to be called, when the debtors to the rebel are specially convened, because the decreet of general declarator puts the donatar in the rebel's place; and so the same holds when the rebel is dead, that his executors need not to be called to the special declarator, nor no other person who might represent him of the law, as heir or executor. See Service of Heirs.

Fol. Dic. v. 1. p. 137. Durie, p. 234.