Scottish Court of Session Decisions

Subject_1 ACCESSORIUM SEQUITUR PRINCIPALE.

Lady Borthwick
v.
Vassals

Date: 13 February 1627
Case No. No 4.

In improbations, pursued by liferenters, the certification must be restricted to the pursuer's interest; i. e. although the writs called for be decerned to make no faith, it is only meant, in so far as may prejudice the liferenter; but will not be at all beneficial to the heritor.

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In an improbation, at the Lady Borthwick's instance, against the vassals of the Lord Borthwick, The Lords found, that the certification granted against the writs not produced, decerning the same to make no faith for not production, could go no further than the pursuer's own interest; which was her infeftment of liferent; and therefore restricted that certification, that the writs should make no faith against her, to be any impediment to her to bruik the said lands, during her lifetime allenarly; and found, that albeit the said certification was so granted against the foresaid writs, in her favours, as liferentrix; yet that the same shall not be profitable to work, in favours of the fiar, or heritor of the said lands; but that, notwithstanding thereof, these same writs might be used against the heritors; and should not be prejudged by that certification, in case he should ever claim any benefit thereby; seeing they were not decerned to make no faith at his instance.—In this same process also, the Lords found, that where a person, who hath acquired right, ex titulo particulari, from a stranger, to any lands; and calls for production and improbation of writs, made by that person, disponer of of the land to that pursuer, as singular successor to him; and calls, also, for production of the writs, made by this acquirer, and pursuer's father, goodfire, grandfire, and others his predecessors, to whom he may be heir, to the persons called in that action, before the time of the acquiring of his said right, from the stranger, ex titulo singulari; yet, hoc casu, such actions ought not to be sustained, except the pursuer be heir to his father, or to that predecessor, who preceded immediately the time of his acquiring of his said right, as singular successor to a stranger, and from whom the rights are libelled to flow; which he quarrels: neither was it sustained, though it was replied, that the father of the singular successor, in the right of the lands, was infeft therein; and so he had reason to call for production of writs, made by him; except he had also eiked thereto, that he was heir to his father, who was so infeft: and consequently this pursuit, moved by the Lady Borthwick, upon her husband's right of liferent, made to her by him; who had acquired his right from the Earl of Lothian, who had comprised the same; and whereby he became singular successor; and whereby the course of his succession, to his predecessors and progenitors, in these lands, was interrupted; was not found a sufficient title; neither to her nor her husband; if he himself had been living, and pursuing this improbation, for improving of the writs made by his father; except he had been heir to his father. Albeit it was replied, That his father was infeft in the lands; seeing the comprising deduced against the pursuer's husband, as lawfully charged to enter heir to his father; and for his father's debts; was an interruption of the course of his succession in his father's right, ut supra. See July 14. 1626. Sir John Hamilton (See Improbation.)—March 5. 1630. E. Wigton, (See Improbation.)

Act. Nicolson. Alt. Hope & Lermont. Clerk, Hay. Fol. Dic. v. 1. p. 2. Durie, p. 272. & Spottiswood (Improbation) p. 165.