Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XVIII.

Accessory Security.

Wishart
v.
Northesk

Date: 17 January 1683
Case No. No 109.

A moveable bond of corroboration does not alter the nature of the original heritable bond, but the debt still remains heritable.

See Sect. 28. h. t. as to the other points in this case.

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Elizabeth Wishart, relict of the deceast James Bonnar, as executrix confirmed to him, and as having right from———Bonnar, nearest of kin to the said James, intented action against the Earl of Northesk, for payment of a sum contained in an heritable bond, bearing an obligement to infeft, and also a clause secluding executors; and also raised another action against the Laird of Morphie, for payment of a sum contained in his bond of the same tenor. There was compearance made for Miln and Bannatine, who were heirs-portioners by their mother to the defunct, and craved to be preferred to the executors, both sums being heritable. It was replied for the executors, That the sums were made moveable by a charge of horning. It was duplied for the heirs, That the clause secluding executors being the detination of the creditor, did exclude the executors, notwithstanding of the horning.—The Lords found, that Northesk and Morphie's bonds did belong to the heirs, notwithstanding of the charge of horning, in respect of the clause secluding executors; but they found, that the annualrent of these bonds did belong to the executors. Thereafter, it being alleged, that the annualrent of Morphie's bond became heritable, there being a comprising for both principal and annualrents; and it being answered for the executors, That after the comprising, the sums were made moveable by an arrestment at the compriser's instance, in an action to make arrested goods furthcoming; the Lords found, that an arrestment, or an action for making arrested goods furthcoming, did not make the sums contained in the apprising moveable. The executors did insist against Keith of Craig for payment of a sum contained in an heritable bond granted to the defunct, in respect the executors alleged, that there was a moveable bond of corroboration granted by Keith of Craig of the said heritable bond.—The Lords found, that the corroboration did not alter the nature of the heritable bond, but that it remained still heritable.

March 1.—In the competition betwixt Wisharts, executors to the deceast James Bonnar, Ballantine and Miln his heirs, anent two heritable bonds granted by the Earl of Northesk and Laird Morphie, which bonds bore not only an obligement to infeft, but likeways a clause secluding executors, the Lords found, that a charge of horning made these bonds so moveable, that, notwithstanding of the clause secluding executors, yet they did belong to the executors, sicklike, as if the foresaid clause had never been inserted in the bonds, in regard that, by the charge of horning, the creditor had sufficiently declared his mind to have up his money from the debtor; in which case, if it had been lying by the defunct, it would have belonged to the executors, and that the debtor's not making payment in obedience to the diligence, could not be profitable to the heir so as to keep the money still heritable. This interlocutor was pronounced upon a hearing in presence, and hereby, they altered a former interlocutor given upon a report from the Outer-House.

Fol. Dic. v. 1. p. 372. P. Falconer, No 43. p. 23. & No 56. p. 35.