Scottish Court of Session Decisions

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

John Auchterlony
v.
William Guthry

Date: 25 June 1629

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John Auchterlony obtained a decreet of registration of a bond made by umquhile Alexander Guthry for 1000 merks, against William Guthry of Meannes, heir of tailyie to the said umquhile Alexander. In the which action of registration, Anna Guthry, heir of line to the said umquhile Alexander, was called and assoilyied, in respect she renounced to be heir; and the registration sustained against her, only cognitionis causa, to have execution contra hæreditatem jacentem. Upon the said decreet of registration, the said William Guthry, heir of tailyie, is charged by the creditor. He suspends, upon this reason, That the heir of line should be first discussed; and albeit, both the heir of line and of tailyie may be pursued in a libel, yet the heir of line ought to be first discussed; and albeit she renounces, yet he might pursue for adjudication, from her, of such rights as fell to her as heir of line; and till the charger follow out this course, he could not charge the heir of tailyie. To the which it was answered, The charger having convened the heir of line, and she having renounced, it was in his option, either to pursue the heir of tailyie, or seek adjudication. The Lords found the letters orderly proceeded against the heir of tailyie; but ordained the charger to make assignation of the right to the heir of tailyie, that he might seek adjudication, for his relief, of the rights pertaining to the defunct, whereunto the heir of line might succeed.

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