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 >> William Menzies v Laird of Drum. [1665] Mor 3881 (25 January 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor0903881-075.html
Cite as: [1665] Mor 3881

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


[1665] Mor 3881      

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.

William Menzies
v.
Laird of Drum

Date: 25 January 1665
Case No. No 75.

Two execucutors obtained decree against a debtor of the defunct; one of the executors died, and the other having charged for the whole debt, the Lords sustained the charge. See No 78. p. 3884.


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

William Menzies, as executor to Alexander Menzies, and umquhile Margaret Gordon the other executor; having obtained decreet against the Laird of Drum, for 8000 merks, the said Margaret being dead, William charges for the Whole: Margaret having died at the horn, compearance is made for the donatar. It was alleged for Drum, that he could not be convened at the instance of this pursuer, Without concourse of the other executor, or some to represent her, had been called; for they might have alleged, that this charger is satisfied of the half of his executry.

‘The Lords found, that seeing the testament was executed by a sentence; the other executor needed not be called.’

2dly, Drum alleged, That he could not be liable to this executor, but for the half. It was alleged for the donatar, that he craved preference for the other half. It was answered, that the donatar could have no interest, because the sum was heritable. It was answered, that albeit it was heritable, yet it became moveable, by the executors taking a decreet therefor, in the same case as if requisition had been used.

In this the Lords did not decide, some being of opinion, that it was moveable, others contrary; because an executor being but a successor, as a decreet of registration, or transference, would not change the nature of the first bond, so neither would this decreet.

Fol. Dic. v. 1. p. 277. Stair, v. 1. p. 254.

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/1665/Mor0903881-075.html