Exceptions, Whether Proponable in Cursu Diligentia.
Fairlie v. Ld of Blair.
Date: 19 February 1611 Case No. No 83.
An obligation was transferred passive against both heirs of line and tailzie, reserving the benefit of discussion and other questions contre exceutionem.
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A contract, whereby the old Laird of Blair was obliged to infeft Fairlie of Over Minock, was decerned to be transferred against the heirs both of line and tailzie, without discussion, reserving their defences against the execution. In that cause it was found, that a charge to enter heir being raised and execute before year and day was sufficient, if the last day of the 40 was after year and day. It was found that a charge to enter heir, execute at the instance of a pursuer before he was heir, was sustained by his subsequent service, which was drawn back to the time of the charge. In that cause, the Lords inclined that the burdens lying upon the tailzied lands, and the bonds to infeft men in the property thereof, or annualrents furth of the same, should be born by the heir of tailzie succeeding to these lands. Service of Heirs.—Tailzie.
Fol. Dic. v. 1. p. 176. Haddington, v. 2. p. 2162.
