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It was queried, 1mo, If a creditor having an heritable bond whereon he is infeft, may seek to be confirmed executor-creditor to his deceased debtor? It was contended he might, for he had in his bond a personal obligement to pay, and he had action against the executors in his option, as well as against the heir; ergo, he might be executor. It was thought if a creditor on a moveable bond sought the office, he was preferable; for an heritable debt cannot be the subject of confirmation passive; ergo nec active.
Fol. Dic. v. 1. p. 279. Fountainhall, v. 1. p. 438.
