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The trustees paid two-third parts of the rents to two descendants of Charles Cairnie's brother, till Martinmas 1824 and August 1825, when the period of ten years expired. William Cairnie, the pursuer, and Colin Cairnie, his father, were then admitted by the defenders to the benefit each of a third part of the rents, In the interval between Martinmas 1824 and Martinmas 1834, a brother was born to the pursuer, named Thomas Cairnie, who, at the latter term, as being nearer the age of fourteen than the pursuer, was found equally entitled to draw the other share of the rents.
The pursuer reclaimed . The Lords superseded consideration until an action at the instance of Stephen Millar Cairnie, claiming preference, should be ready for decision. The Lord Ordinary reported that case to be advised along with the present, issuing the following note: ‘As the original action stands sisted in the Inner-House till the preferable claim of the present pursuer is disposed of, the best way to get a speedy decision for all parties is obviously that which has been adopted.
On the merits, the Lord Ordinary is of opinion that the lawfu son of a bastard is as much entitled to use the surname by which his father was always known and distinguished, as the lawful son of one not a bastard; provided always that the surname was settled and fixed on the bastard throughout his life, and not changed or assumed for any interested purpose. If this were not so, no man would be entitled to his surname, in the line of whose male ascendants a malicious diligence might detect an illegitimacy.
At the advising of both actions, the Court , after hearing counsel fully, were clearly of opinion with the Lord Ordinary, in regard to William Cairnie's claim, that the defence ought to be sustained; that it was impossible to give the party for a second time the benefit of the bursary; and that the trustees had thus a discretionary power, which the Court could not interfere with.
Their Lordships adhered , and found additional expenses, to be paid from the trust funds. Stephen Cairnie's claim was also refused; but no expenses were allowed to him.
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Common Room
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