Scottish Court of Session Decisions

Subject_1 DISCUSSION.
Subject_2 DIVISION I.

Discussion of Heirs.
Subject_3 SECT. II.

No Benefit of Discussion betwixt Heir and Executor.

Carnegie
v.
Knowes

Date: 24 February 1627
Case No. No 12.

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A Creditor may, at his option, pursue either the heir or executor of his debtor, albeit the bond be heritable; because the heritable clause is always thought to be introduced in favours of the creditor, and therefore should not prejudge him.

Fol. Dic. v. 1. p. 246. Spottiswood, (Creditors & Debtors.) p. 76. *** Durie reports the same case, calling the defender Lermonth:

In an action betwixt William Carnegy and Lermonth, for payment of a sum of money contained in an heritable bond, whereby the debtor was obliged to pay annualrent to the creditor, as well not infeft as infeft, the Lords found, that the creditor might as well pursue the executor of the defunct, as his heir, for payment of such heritable sums, notwithstanding that the bond was heritable, and that the heir needed not be pursued, and discussed before action were granted against the executor; but that, in deeds which were prestable by executors, the creditor had in his option and election, either to pursue the heir of the defunct debtor, or his executor, or any of them whom he pleased to chuse, for payment.

Act. Aiton. Alt. Hope. Clerk, Gibson. Durie, p. 281.