Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Thomas Edgar
v.
William Halliday

Date: 29 June 1624

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In an action of registration of a bond made by umquhile Mr James Halliday, pursued by Thomas Edgar against William Halliday, as served heir to his brother,—the Lords sustained the action against him, as heir served: albeit it was alleged, that no action could be granted against the heir, while the expiring of year and day after the defunct's decease, which was not expired in this case, as was provided by the 76 Act, 6 Parl. Ja. IV. Which allegeance was repelled, in respect that the defender was served heir, by the which the liberty and time of a year after the defunct's decease, by the intention of that Act, is only granted to persons to deliberate and advise, if they will enter heirs, or not; of the which liberty, by the said entering heir, he had prejudged himself.

In this process, also, the Lords found, that a bond bearing to pay annual, albeit not containing a clause of infeftment, was heritable, and so was prestable by the heir of the defunct; and not by the executor, of necessity, as if they were only liable.

Act. Lawtie. Alt. Craig. Gibson, Clerk.

Vid. for the first part of this decision, 11th November 1624, L. Ellerslie; 29th July 1623, Stuart against Fleming; item, 12th March 1622, Fairlie; for the last part of the decision, 29th March 1626, Couston against Stuart.

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