A person tailzied his lands to heirs male. Afterwards he granted a bond of provision to his second son; whom failing, to the heirs of tailzie. The heirs of the entailer's body failed; and a more remote heir of tailzie succeeded, to both the estate and the bond. The bond remained a distinct and subsisting debt upon the estate.
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In the year 1683, Alexander Irvine of Drum made a tailzie of his estate in favour of himself, and the heirs male of his body; which failing, to certain other heirs male named. In the year 1687, the said Alexander Irvine executed a bond of provision for the sum of L. 80,000 Scots to his second son Charles, and the heirs male of his body; which failing, to the other heirs male of the persons nominated and designed by him to succeed in his lands and heritages. The heirs male of the entailer's body having failed, the succession, both of the entailed estate and of the bond, devolved upon Alexander Irvine of Murthill, who was accordingly served heir of tailzie to the said estate, but did not expede any service to the said bond of provision. After his decease, his son and apparent heir granted a bond for L. 10,000 Sterling to a trustee, who thereupon charged him to enter heir of provision to Charles, in order to make up a title by adjudication to the L. 80,000 bond; and having thus established the bond in his person, he again charged the apparent heir of tailzie in the estate of Drum, and obtained an adjudication against the estate for the said debt of L. 80,000. In a process at the trustee's instance against the heirs of entail, concluding that the bond of L. 80,000 Scots was a subsisting debt, and did effectually burden the entailed estate of Drum; the Lords found, That the heir male of Murthill being served heir to the estate of Drum, his service did not state him in the right to the L. 80,000 bond, so as to operate a confusion in his person; and that this Drum being charged to enter heir in special to Charles, and adjudication having thereon followed, did not operate a confusion of debtor and creditor in this Drum's person; and therefore found, that the said bond of provision is not extinguished, but is still a subsisting debt upon the estate of Drum. See Appendix.
