Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

David Kinloch
v.
Fullerton

Date: 10 July 1739

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[C. Home, No. 125.]

By the law of England, bills, promissory notes, and merchants' accounts only burden the executry, but do not affect the heir. The question here was, Whether such bills, &c. granted in England, could affect the heritage in Scotland?

The Lords found they did: because, being deeds, which, of their own nature, were valid by the law of Scotland, there was no reason for refusing them the full extent that law had given them. The locus contractus regulates the form of any deed or obligation, but never the subject which it affects; thus the law of England will regulate the form of a testament there, but will never extend it to heritage here in Scotland. However, Drummore was of opinion that this decision would hardly tally with some other decisions of their Lordships. See infra, January 25, 1743, Creditors of Sir James Wood against Heir; and 19th June 1746, Marshall against Yeaman. The locus contractus will not affect the substantials of any deed; for example, a nuncupative testament, made in England, will convey nothing in Scotland; January 19, 1665, Shaw against Lewens, reported by Lord Stair.