Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Lady Oldbarr [or Arblair]
v.
Her Husband's Heir

Date: 7 March 1629

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The Lady Oldbarr having paid an heritable bond, per ignorantiam, made, by her umquhile spouse, to Mr Thomas Lundie, minister, she being but executrix to her husband, and, instead of a discharge, received only but the principal bond, and cancelled the same;—she pursues her husband's heir for repayment of it to her, as having paid the same for him, which was due to the heir to pay, upon this ground of law, quem sequuntur commoda, equum est ut eundem sequantur incommoda; and, seeing the executor, by law and Act of Parliament, James 4, Parliament 6, chap. 76, is obliged to relieve the heir of the moveable debts; so, of reason, the heir ought to relieve the executor of heritable bonds owing by the defunct. The Lords sustained the summons; but the heir alleged that the receiving of the bond from the creditor was not sufficient, except the executrix proved the payment of the debt, and that the cancelled bond was entire and owing by the defunct, the time of his decease: which the Lords found relevant to be proven, viz. the real payment of the debt by the creditor's oath; and that the sum was owing the time of the defunct's decease, by the oath of the heir.

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