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Jean Knox having obtained sentence for payment of 1000 merks against her brother, as heir to his father, granter of the bond upon that sum to her; and having also obtained decreet against a suspension and reduction intented by her said brother, for reducing of that sentence and bond; thereafter the charges for the said payment being de novo suspended, upon this reason, viz. because she was executrix nominate to her father, granter of the bond, and albeit she was not confirmed, yet she had intromitted with as many of the defunct's goods as would extend to that sum, and so she was paid in her own hand, and could not pursue the heir therefor, especially seeing the bond is a moveable bond, and not heritable, which ought to affect the executor, and who ought to relieve the heir thereof; the Lords would not receive this reason being competent before the first sentence given against the suspender, then compearing, and then known to him, but omitted, and not proponed; and therefore found it not receivable now, especially seeing it was offered only to be proved by witnesses, that she had intromitted, and was not offered to be proved by writ or oath of party; therefore it was not received in this suspension against a written bond and sentence, being omitted of before ut supra.
Clerk, Scot.
Fol. Dic. v. 2. p. 208. Durie, p. 661.
