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 >> Lyle v Hepburn. [1628] Mor 3867 (2 December 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor0903867-054.html
Cite as: [1628] Mor 3867

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


[1628] Mor 3867      

Subject_1 EXECUTOR.
Subject_2 SECT. VI.

Interpellation.

Lyle
v.
Hepburn

Date: 2 December 1628
Case No. No 54.

Found as above.


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

William Lyle having convened Margaret Hepburn, relict and executrix of Francis Lyle, to hear and see a bond of 300 merks granted by her husband to the pursuer's father, registrate against her as executrix, alleged, Quod non tenebatur ultra vires inventarii; and true it was, that all the free goods contained in the testament were exhausted by lawful sentences upon lawful probation, conform whereunto she had made payment. Replied, Not relevant, unless she alleged the decreet, whereupon payments were made, were obtained before the intenting of the pursuer's cause, for she was in mala fide to pay any other after the pursuer had intented his cause, but she should have suspended upon double poinding, and her voluntary payment should not prejudge him.——The Lords repelled the exception in respect of the reply.

Fol. Dic. v. 1. p. 275. Spottiswood, (Executors) p. 119. *** Durie reports the same case:

In this action, a creditor convening the executrix to the debtor, who alleging, that the whole free goods in the testament were exhausted by sentences recovered by other creditors upon lawful probation, whereof she had made payment, this was not sustained to exclude this pursuer, and to liberate the executrix, except she should allege, that these other decreets were obtained by the other creditors against her, before the intenting of this pursuit against her, without which she was not in bona fide to have paid them after the pursuer's citation, if decreets were recovered sinsyne; but she ought to have suspended it upon double poinding, that the pursuer's debt might have been discust, and she either freed thereof by the Judge, or that he might have come in with the rest of the creditors pro rata.

Act. Craig. Alt. Mowat. Durie, p. 403.

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/1628/Mor0903867-054.html