Scottish Court of Session Decisions

Subject_1 FRAUD.

Burden
v.
Whitefoord of Dunduff

1742, June 4.
Case No. No. 11.

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The Lords seemed clear that Dunduff's right could not be reduced, as a non habente, because John M'Whirter, younger, for whom Kennedy of Baltersan purchased died in the state of apparency and was not infeft, whereby Baltersan's infeftment on his resigna tion was void as a non habente; yet an adjudication in implement on a charge to enter heir having followed on the disposition, that adjudication may be completed quandocunque. But then as Baltersan's and Arbuthnot's his heir's right was only personal because of the nullity in their infeftment, they found that the fraud of Baltersan was competent against Dunduff the purchaser from his heir, and that notwithstanding the former absolvitors obtained by Dunduff against James M'Whirter, in respect that decreet was founded on an error, viz. that his author had a lawful infeftment;—and so far we all agreed. But the Lords also further found that the proof led against Arbuthnot of the fraud in that very process wherein Dunduff was assoilzied, and after that absolvitor was extracted, was good evidence in this process against Dunduff, but prejudice nevertheless to elide it; whereas others thought that as he was rendered secure by that decreet-absolvitor, and was not bound further to notice the proceedings, the proof behoved to be again led, but such of the witnesses that were dead, that their testimonies might be repeated. But this point carried only by the President's casting vote.—17th June Adhered, but allowed the defender to re-examine the witnesses yet alive.