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Scottish Court of Session Decisions >>
Johnston v Johnston. [1642] Mor 9692 (10 February 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor2309692-049.html Cite as:
[1642] Mor 9692
An apparent heir discharging or renouncing any right competent to him.
Johnston v. Johnston
Date: 10 February 1642 Case No. No 49.
An apparent heir having ratified an apprising led against his predecessor, and renounced the benefit of the legal, this was found a behaviour.
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One Johnston convening Johnston the apparent heir to his debtor, as lawfully charged to enter heir to him, for payment of his father's debts; and, the defender renouncing to be heir; the Lords found, that he could not renounce in respect of this reply, which the Lords found relevant, viz. that the pursuer offered to prove, that the said defender had bought the defender's father's lands from a compriser, who had sold the said lands and his right of comprising to the Lord Johnston; to which disposition the defender consented, and had received for his consent to the said heritable disposition thereof 10 or 12,000 merks, whereby res non erant integræ for him to renounce; especially seeing the time of the said disposition, the comprising was not expired, but the right of reversion was competent to him, which the Lords admitted to the pursuer's probation in this process. Also, the Lords sustained another process at this same pursuer's instance against the Lord Johnston, for making arrested goods forthcoming, notwithstanding that this debt was not decerned against the principal party, but was depending ut supra; and found, that this pursuit, to make arrested goods forthcoming, might be intented, albeit the said principal cause was not declared ut supra; but found, that the said process of arrested goods could not be prosecuted, but should lie over, while the principal cause for the principal debt were first discussed.
Act. ——.Alt. Johnston.Clerk, Hay.
Fol. Dic. v. 2. p. 31. Durie, p. 891.
