Scottish Court of Session Decisions

Subject_1 HERITABLE AND MOVEABLE.

Sir John Kennedy
v.
Mrs Ann Kennedy

1747, Nov. 18.
Case No. No. 13.

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Sir John Kennedy had several bonds due to him payable to his heirs and assignees secluding executors, and he assigned them to John afterwards Sir John his eldest son, and his heirs, without mentioning executors or secluding them, Young Sir John also died, and now Thomas the heir and his sisters as executors to young Sir John competed for the bonds, and the Lords preferred Sir Thomas the heir. Renit. Dun and Drummore. Sundry matters resulting from this interlocutor were fully spoken. Arniston, though he was strongly for the interlocutor, in respect the assignation by old Sir John to young Sir John was only to him and his heirs, which he thought an indication of his mind that it should not go to executors, yet thought that when an heir succeeds to such a bond by service, it becomes moveable and goes to his executors; and 2dly, that it is testable even by the original creditor, and differed totally from the decision 1725, M'Kay against Robertson. Drummore again thought these bonds moveable. Kilkerran was of opinion for the decision M'Kay, and also thought this bond still heritable in young Sir John's person. Minto in the chair thought that the act of Parliament made bonds secluding executors heritable to all intents in the persons of strange assignees as well as heirs. But most of us, particularly Arniston, Tinwald, and I, differed from him in that point. December 1st The Lords adhered, and refused without answers.