The Earl of Dumfermeling being dead, and his brother, who succeeded to him, insisting in that famous process against the Earl of Calander, it was Alleged, He behoved to transfer. Answered, He needed not, for he had an assignation to the process from his brother, and so he now insists as assignee.
Replied,-1mo, It was on death-bed, and not intimated in vita defuncti. 2do, It was not judicially produced in process in his lifetime, and so cannot summarily give him a title.
Yet the Lords sustained it, and would not so put him to the necessity of a transferring as to give it out and enrol it in communi forma; but to be seen in the clerk’s hands, and immediately call it as an act; which was little or no delay. See 10th January, 1679, Auchmouty and Dumfermeling.
Citations:
[1677] 3 Brn 205
Links:
Jurisdiction:
Scotland
Wills and Probate
Updated: 04 December 2022; Ref: scu.677388