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Barclay v David Barclay of Tough. [1710] 4 Brn 796 (6 June 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Brn040796-0304.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Barclay v. David Barclay of Tough
Date: 6 June 1710
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Barclay, heir of provision of a second marriage, pursues Mr David Barclay of Tough, for implement.
Alleged,—That his being the only bairn of the marriage, was no sufficient title to pursue, unless he had been served.
Answered,—It is offered to be proven, by your oath, that I am the heir of that marriage, and so holden and reputed; which the Ordinary, in the Outer House, had sustained relevant. And the act being extracted, when the Lords came to advise the cause this day, it was thought by some of them, that the being the sole bairn of the marriage was not a legal title to pursue, without a service as heir of provision: and the first time this was sustained, was in Carnegy of Kinfauns' process, and has not been uniformly so decided since; especially seeing it is a passive title, and the right of blood is not enough: Yet, in regard it was so found in the Act, the Lords sustained it here, without any farther; though some thought a cognition by sentence, at the least, necessary.
