Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.

Geekie, Hamilton, and Hay

1752, Jan. 8, 23.
Case No. No. 30.

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Henry Haliburton, writer, as creditor by adjudication on Jackson's land, which was going into disrepair, obtained the Sheriff's warrant for repairing, and declaring these repairs a preferable debt, and Jackson the proprietor consented. Haliburton died before he paid the tradesmen; and these three persons were his heirs-portioners; but Geekie was sole executor; and he paid the tradesmen, took assignations from them, and got the extent of repairs cognosced by the Sheriff; and pursued declarator against his co-heirs, that they should cither repay him the two-thirds on his assigning them, or otherwise that he should be preferred for his reimbursement on the tenement; and Kilkerran, Ordinary, found that the repairs made during Haliburton's life were moveable debts that affected his exe cutor, and therefore assoilzied the heir. But on a reclaiming bill we found indeed that the expenses of the repairs were moveable, and affected his executors; but found, that the relief competent to Haliburton of those expenses either against Jackson or out of the rents was also moveable, and descended to his executor; and that therefore the pursue* having paid them, was entitled to be paid out of the first and readiest of the rents of the tenements; for we thought that those expenses were not real nor heritable debts either in the persons of the tradesmen or of Haliburton, if he had paid them,—but that they were personal and moveable,—only by custom within Burgh, they had a privilege of retention till paid, or of being paid out of the first of the rents, because rem salvam fecerunt. But if the creditor should neglect that privilege, and suffer the proprietor to possess and dispose of the rents for some considerable time, and afterwards to sell them, the purchaser would not be liable for these repairs.—23d January Adhered.