Action of proving the tenor cannot proceed against the heir of a defunct, without calling the executor.
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In an action for proving of the tenor of a bond betwixt the Hammermen in Glasgow and Crawfurd, who was convened as heir to his father, for proving of the tenor of the bond made by his father to the pursuers, the Lords found, that no process ought to be granted for proving of such tenors of obligations, after the decease of the debtor, except the executors of the defunct were specially called to these pursuits; because the same tends to make up obligations, whereupon the executors may be distrest, either by the principal creditor, or by the debtors heir who is convened; which heir thereupon might seek relief against the executors; and because this defender was convened, both as heir and executor to the defunct, and the defender condescended not that there were other executors, therefore the process was sustained. And, because it was found by the Lords, that this action to prove a tenor was of a dangerous consequence, to make up obligations after the decease of the debtor, the cause of amission not being clearly qualified, which was found necessary to be well-known and qualified, and also proven in these cases to make up obligations; neither were the articles libelled found sufficient to produce this action, which were only conceived upon probation by witnesses; therefore the Lords assoilzied from that action, in so far as it was of the nature of a cause to prove the tenor of a bond; but because the obligation desired to be proven was only of the sum of 100 pounds, therefore they suffered the pursuer to convert the pursuit, by this same summons, in an action to pay the debt against the defender; which decreet and action, so converted, the Lords found might be proven by witnesses, who saw the sum lent, and who knew that the defunct paid annualrent therefor; and found, that albeit the debt acclaimed extended to 100 pounds, yet seeing it exceeded not 100 pounds, that it might be proven by witnesses.
Act. Lawtie.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 143. Durie, p. 354.
