Scottish Court of Session Decisions

Subject_1 QUOD POTUIT NON FECIT.

Drummond
v.
Drummond

Date: 22 January 1624
Case No. No 3.

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Drummond alleging, That umquhile David Drummond, servitor to the Earl of Holdernesse, had, by his testament, made in England, left to him in legacy the sum of L. 50 Sterling, owing to him by the Laird of Spot, pursued Archibald Drummond, executor to the defunct, to pay him the said sum. It was excepted, That the defender should be assoilzied, because the said sum was heritable, and could neither fall under testament, nor be left in legacy. It was answered, That the sum being expressed in the quantity, albeit the designation was erroneous, yet the legacy was valid in the sum, and behoved to be paid by the defender, off the readiest of the defunct's free gear, which far exceeded the quantity of the sum left in legacy, seeing, of the law, legatum rei alienæ licet non directe valet, tamen ejus pretium de prestandum est. In respect of the which reply, the Lords repelled the exception.

Fol. Dic. v. 2. p. 309. Haddington, MS. No 2970.

*** Durie and Spottiswood's reports of this case are No 10. p. 2261. voce Clause.