Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Robert M'Dougall, second Son to Ann Johnston and John M'Dougall of Logan
v.
the creditors of Johnston Kelton

Date: 14 January 1742

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“The Lord Elchies having found that a process for a judicial sale of the subjects in the inventory, at the instance of an heir served cum beneficio was not competent, the pursuers complained by representation, and inter alia, referred to Sneidman, ad § 5. de hæredum qualitate et diff. where he says, that propter confec-tionem inventarii constituetur hæres in eo statu ac si hæreditatem non adiisset, and farther argues, that an heir cannot do justice to himself and creditors, unless he brings the estate to a judicial sale.

“In Holland where the entering of heirs, cum beneficio, is allowed as with us, the heir must expose all the subjects in the inventory to a judicial sale ; Voet. § 21. ad Tit. De Jure Delib.

“ The practice formerly was to allow the heir to retain the estate upon answering for the value as it should be proved before the Lords. The point decided in these cases is indeed since varied, and the creditors allowed to bring the estate to a sale. But had the heir in these cases agreed to bring it to a sale, the creditors could not have sold it as a bankrupt estate.

“N. B. In this case the pursuer was only disponee from the heir cum beneficio, whence he was argued to be in the heir's right, and that he might exercise all the powers and faculties competent to the heir.

Interlocutor,—14th July, 1742.—“The Lord ordinary having considered the representation, and advised with the Lords : Finds that the pursuer, in the right of Ann Johnston, his mother's heir served cum beneficio inventarii, to Captain Robert Johnston of Kelton, her brother, is entitled to bring the subjects of the inventory to a sale before the Lords, and therefore sustains process.”