Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Collisone v. Meinzies
Date: 14 November 1671
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November 14.—This is a pursuit at the instance of an executor dative ad non executa, for payment of a sum owing to a defunct by—.
It was alleged,—No process at the pursuer's instance, because this sum to which he confirms himself executor creditor ad non executa, is not only confirmed in the principal testament, but it is also executed, in so far as the principal executor has recovered sentence against the debtor therefore.
Replied,—A sum cannot be estimated to be executed by a naked sentence recovered, unless he has also got payment, and discharged the same; for if it were executed by a sentence, then it should be in bonis executoris; if he died, it should be confirmed in his testament, and belong to his executors; if he went to the horn, that sum should also fall in his escheat, and belong to the fisk; with many other inconveniencies.
It was duplied,—After sentence they are undoubtedly in bonis executoris, for this reason, he has all the acts of property and dominion that can be condescended on: he may uplift it, he may discharge it, and he may assign it; it will also fall under his escheat; in respect of all which there can be no place for a dative ad non executa. Neither is this a novelty, seeing the Lords have found the same frequently before, viz. betwixt Douny and Young, on the 10th of November, 1666; and lately, in 1670, in Mr. Arthur Gordon, Advocate, his cause against the Laird of Drum.
They were to have the Lords' answer on it.
Advocates' MS. No. 255, folio 112.
November 21.—The debate supra, at the 255th number, betwixt Collisone and Meinzies being reported this day, the Lords found the testament sufficiently executed by a sentence, and so there was no room for a dative ad non executum. It will also prove a great preparative for its falling under escheat, &c.
