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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boyd Porterfield of Porterfield, v Joanna, Marion, and Silias Porterfields. [1771] Hailes 457 (6 December 1771)
URL: http://www.bailii.org/scot/cases/ScotCS/1771/Hailes010457-0241.html
Cite as: [1771] Hailes 457

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[1771] Hailes 457      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION - TAILYIE.
Subject_3 An obligation to execute an entail cut off by the Negative Prescription.

Boyd Porterfield of Porterfield,
v.
Joanna, Marion, and Silias Porterfields

Date: 6 December 1771

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[Faculty Collection, 340; Dictionary, 10, 698.]

Pitfour. The obligation, by Hapland, is in 1716, “Sicklike, I bind and oblige me, and my foresaids, to make an destination and tailyie, that, failing of me and heirs-male of my body, the lands and estate of Hapland, or what parts thereof I shall happen to acquire, is wholly to accresce to the said Alexander Porterfield and the heirs-male of his body.” Nothing was done upon this deed till 1768. It is lost by negative prescription. The course of the prescription would not be stopped by the estate continuing in Hapland's male descendants, because Alexander Porterfield was non valens agere cum effectu. But, here, from the very moment of the deed, Alexander Porterfield might have called upon Hapland to execute an entail. If he neglected this for 40 years, his claim is lost.

Coalston. Doubted as to negative prescription, because Alexander Porterfield could take nothing by it.

On the 5th December, 1771, the Lords sustained the defence of negative prescription, (and also the other defences;) adhering to Lord Monboddo's interlocutor.

21st December 1771, adhered.

Act. J. Swinton, junior. Alt. A. Lockhart.

Diss. Coalston, as to prescription.

N.B.—The other defences in this case were so involved in fact, that it would serve no purpose to state the reasonings of the Lords upon them.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1771/Hailes010457-0241.html