Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Creditors of the deceased Alexander Cunningham, Writer in Edinburgh,
v.
Janet Cunningham, his only child, and her Tutors

Date: 14 January 1714

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In the count and reckoning, at the instance of the creditors of Alexander Cunningham, against Janet Cunningham, his daughter, and her tutors, who had served her heir to her father cum beneficio inventarii;

Alleged for the defenders,—That the heir cannot be liable to the pursuers for the value of the land, but only to give them localities thereof, conform to their sums.—Because, 1. The Act of Parliament allows apparent-heirs to enter cum beneficio inventarii, as use is in executry; and executors are liable only for what they intromit with, and to assign to the creditors, in so far as the testament is not executed. 2. Janet Cunningham being minor, cannot get credit to raise money to the value of the land, which would put the creditors to the necessity of adjudging. And when a sale is carried on, if a merchant cannot be had, the creditors must necessarily divide the land among them; and it is better to divide now, before it be exhausted by process, as afterwards.

The Lords found, that Janet Cunningham, the minor, must be liable to the creditors for the value of the land; and that she cannot free herself by offering them localities of land, conform to their sums.

MS. page 14.