Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alison Gouiilay and Macmorrax v. Urquhart
Date: 11 December 1695
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Philiphaugh reported Alison Gourlay and Macmorran against Urquhart. A mother having alimented her son, who had an estate aliunde, and so not er pietate, she and her assignee, after his death, pursue his nearest of kin before the Commissaries of Edinburgh, to cognosce and constitute the debt; and, probation being led, her oath is taken in supplement; and on this the heir is pursued for affecting the heritage.
Answered,—That he denied the debt:—To which the decreet of cognition was opponed.
Replied,—He was not called thereto, and it was a known maxim,—quod res inter alios actœ alteri non prœjudicant; and all parties having interest must be called; seeing I might have proponed defences against the debt, which the executor either knew not, or, by collusion, neglected.
Duplied,—There could not be two decreets of cognition; and, by the custom of the Commissariot, none were the contradictors in such processes but the nearest of kin.
The Lords found the design of these actions was principally to affect the moveables; and, therefore, none but such as would be executors are in use to be called. But, if it were stretched against the heir, he behoved to be also convened: and therefore sustained this decreet of cognition against the heir, tanquam libellus only, that he might be heard on his defences against the constitution of the debt.
