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Scottish Court of Session Decisions >>
Earl of Kinghorn v Leslie. [1607] Mor 3574 (18 June 1607)
URL: http://www.bailii.org/scot/cases/ScotCS/1607/Mor0903574-022.html Cite as:
[1607] Mor 3574
Real burdens follow the heir who succeeds to the lands burdened.
Earl of Kinghorn v. Leslie
Date: 18 June 1607 Case No. No 22.
Though an heir of conquest or tailzie must first be discussed with respect to debts affecting the conquest or tailzied lands; yet, if the debt exceed the worth thereof, the heir general must first be discussed pro relinquo.
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The Earl of Kinghorn pursued the general heir and heir of conquest of umquhile Mr William Leslie of Warthill, to hear and see a decreet of violent profits obtained by him against the said Mr William, as cautioner in a removing for John Arbuthnot of Lintuch, transferred in the said heirs. It was alleged for the heir of provision; that it could not be transferred in him, at least could have no execution against him, till first the general heir was discussed, in respect of the daily practice, and alleged the decision betwixt Durie and Rosyth, and diverse others. It was answered by the general heir; that the decreet behoved to have execution against the heir of provision, because the said umquhile Mr William having in his own time comprised the said John Arbuthnot's lands for his relief of the said cautionary, and his heir of conquest and provision having succeeded to the said lands, he behoved to bear the burden of the said decreet of violent profits, and execution to follow thereupon, and alleged the practic betwixt William Hamilton burgess of Edinburgh, and the Lady Samuelston, and Archibald Hamilton her son. The Lords found, that the heir of conquest should first be discussed in quantum sufficebat valor terrarum appretiatarum, and if these were all exhausted, that he should be no farther discussed nisi in subsidium of the general heir, who should be first discussed for all the rest of the decreet.
