Citation in Process at the Instance of a Legatee. - At the instance of an Assignee. - In Process of Locality. - Of Pension. - Of Declarator of Extinction or Payment.
Forrester v. Clerk
Date: 10 March 1627 Case No. No 36.
A special legatee cannot convene a debtor, without calling the executors of the defunct. They might allege reasons why the legacy ought not to be paid.
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In an action betwixt Forrester and Clerk, for payment of a legacy of a sum specially adebted by the defunct's debtor, designed in the legacy, the Lords found, That albeit the legacy was specified and designed certainly owing by such a special debtor, yet that the legatar could not convene the debtor therefor, except the executors of the defunct had been also convened in that pursuit; for they might have alleged some reasons why the legacy should not have been paid, as quod debita excedunt bona, or some other lawful defence, which makes them necessary parties to have been called; so that the process, without their citation or concourse, could not be sustained.
Act. Nairn.Alt. Haliburton.
Fol. Dic. v. 1. p. 134. Durie, p. 288.
