If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duke of Lenox v Cleland. [1627] Mor 3879 (20 February 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0903879-072.html
Cite as: [1627] Mor 3879

[New search] [View without highlighting] [Printable PDF version] [Help]


[1627] Mor 3879      

Subject_1 EXECUTOR.
Subject_2 SECT. VIII.

If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem.

Duke of Lenox
v.
Cleland

Date: 20 February 1627
Case No. No 72.

An executor having raised a process, and died lite pendente, it was found that his executor could not obtain transference of that process.


Click here to view a pdf copy of this documet : PDF Copy

In an action of transferring, at the instance of the Duke of Lenox, as executor to umquhile Esme Duke of Lenox his father, and also as executor to Ludovick Duke of Lenox his uncle, against Sir James Cleland, for transferring of an act of lisiscontestation, in a process intented by the said umquhile Esme, as executor decerned to the said umquhile Ludovick against the said Sir James; the Lords found, That seeing Esme was executor decerned to Ludovick, and that he died pendente lite, and so that debt pursued for was not executed, therefore, that that office of executry to Ludovick, which was in Esme's person, became extinct by Esme's decease; and that the pursuer, as executor to Esme, could not seek transferring of that action, and as executor, to Ludovick, he could not seek transferring, because no action was pursued at Ludovick's instance; and so, albeit the pursuer was executor to both, yet that he had no interest to seek transferring of that action, but that the right of executry whereto he succeeded, furnished him a ground of a new pursuit.

Act. Hope & Stuart. Alt. Aiton & Nicolson. Clerk, Hay. Fol. Dic. v. 1. p. 276. Durie, p. 279. *** Nicolson reports the same case:

James Duke of Lennox, as executor decerned, and having licence to Esme his father, and as executor decerned, and having licence to Ludovick his uncle, pursues transferring of an action and process pursued by Esme, as executor decerned and having licence to Ludovick, against Sir James Cleland, and Alexander Wemyss, to be transferred in the pursuer active the hail process, and namely, the act of litiscontestation therein made. Parte comparante, excepted, na transferring of the action in the pursuer as executor to Esme, because the process was at his instance as executor decerned and having licence, and sua pursued ratione officii of executry to Ludovick, whilk office is dead with Esme, and so falls; and the clame of the process and right to the goods and debts therein contained are in bonis non executis of Ludovick, and will pertaine to his executors ad non executa; but the first action and litiscontestation at Esme's instance perishes; and, as executor having licence to Ludovick, he has no right to crave transferring, the first action not being pursued at Ludovick's instance. Replied, The litiscontestation cannot evanish, and cannot pertain to any other but Esme's executors, and res ipsa the goods pertains to Ludovick, to whom the pursuer pursues also as executor. The Lords will not sustain action hoc ordine; but reserve to the pursuer to acclaim the goods and debts contraverted be any other lawful manner of way.

Nicolson, MS. No 161. p. 114.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0903879-072.html