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Scottish Court of Session Decisions >>
Drysdale v Crawford. [1627] Mor 5467 (29 June 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor1305467-038.html Cite as:
[1627] Mor 5467
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. VII.
Rights having tractum futuri temporis.
Drysdale v. Crawford
Date: 29 June 1627 Case No. No 38.
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James Drysdale, executor confirmed to Janet Drysdale his sister, convened Henry Crawford for registration of a bond made by him to Janet. Alleged, That the bond was heritable, and so pertained to the heir. Answered, He is the only person who could be heir, and being executor had the only right to the sum, which was so mean that it would not pay the service. To supply all, he offered to find caution to warrant him at all hands. For all this, the Lords found the exception relevant.
Spottiswood, (Executor.) p. 113.*** Durie reports the same case:
In an action of registration of a bond at the instance of James Drysdale, executor to him to whom the bond was made, against Henry Crawford debtor, the Lords found, that this bond could not be sought to be registrate at the executor's instance, albeit the same was confirmed in the defunct's testament, in respect the bond obliged the defender to pay annualrent therefor; whereby the Lords found, it pertained to the heir, and not to the executor; neither was it sustained what the pursuer answered, that he was that same person who would be heir in law, and that he also offered caution to warrant the defender at the heir's hands, and all others, seeing he was not retoured heir to the defunct; but the Lords found the process might lie over while he should be served heir, and then, upon production of his retour, he might proceed to his cause.
