Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XVII.

Adjudication upon Moveable Bonds.

Carnegie
v.
Carnegies

Date: 16 January 1700
Case No. No 97.

Found, that the raising, executing, and insisting in a process of adjudication, where the creditor died before sentence, did not alter the nature of the debt from what it was formerly.

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In the competition betwixt Carnegie of Boisack and the daughters of Carnegie of Braiky, it came to be debated, where one raises a summons of adjudication upon a moveable personal debt, and dies before decreet, whether the raising and executing the summons of adjudication in the father's lifetime did sufficiently intimate his purpose and design to make it heritable, so as to fall to his heir, or if it still retained its former nature of a moveable right till it was confirmed by a decreet. Alleged for the heir, That the style of the summons made for him, craving the lands to be adjudged to him heritably, in payment and satisfaction of his sum, which was a legal and habile intimation of his design to nail the sum to the ground and make it real; and before the act of Parl. 1641, (1661) even sums only bearing annualrent were heritable, their yearly fruit being their annualrent; and this is analogous to what the Doctors teach, and particularly Voet. cap. 7. de natura mobilium et immobilium, that actiones ad res immobiles tendentes pro immobilibus habentur, nam qui actionem habent, rem ipsam habere censentur, quia per eam non stat; and Stair, lib. 2. tit. 1. § 3. shews that destination can ipso facto render a moveable sum heritable; and all know that a requisition or charge of horning makes an heritable debt moveable, and all because of the indication of the creditor's mind, even so here. Answered, Every incohate act does not alter or change the nature of things, neither is it always the party's design to have his money when he raises an adjudication, but oft times it is rather to secure it: yea the declared intention of calling for a sum in a bond secluding executors by a charge of horning has been found not to make the sum moveable. See M'Kenzie's Instit. book 2. cap. 1. and the act 32d Parliament 1661 excepts no bonds from being moveable as to children's succeeding therein, save only bonds bearing clauses of infeftment, or expressly secluding executors. The Lords found the raising, executing and insisting in a process of adjudication, where the creditor died before he obtained sentence, did not alter the nature of the debt from what it was formerly, so as to render it heritable or make it fall to the heir.

Fol. Dic. v. 1. p. 372. Fountainhall, v. 2. p. 81.