You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Mr James Graham Advocate, v Captains John M'Queen and William Drummond. [1711] Mor 3128 (9 February 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor0803128-006.html Cite as:
[1711] Mor 3128
Subject_1 CREDITORS OF A DEFUNCT. Subject_2 SECT. I.
Decisions upon Act 24th, Parliament 1661.
Mr James Graham Advocate, v. Captains John M'Queen and William Drummond
Date: 9 February 1711 Case No. No 6.
Under apparent heirs, in act 24th Parl. 1661, are comprehended nominatim substitutes in bonds or other rights; so that the creditors of the institute ate preferable to the creditors of the substitutes.
Click here to view a pdf copy of this documet : PDF Copy
In a competition betwixt Mr James Graham, as decerned executor qua creditor to Mrs Alison Fletcher, relict of John Graham, general post-master, and Captains M'Queen and Drummod, executors-creditors to Captain David Graham, for the sum of 1000 merks, which the Earl of Strathmore and his cautioner were obliged by bond “to pay to Mrs Alison Fletcher, and failing of her by decease, to the said Captain David Graham, or to Mrs Alison's assignees what soever;”—The Lords preferred Mr James Graham to Captains M'Queen and Drummond, executors-creditors to Captain David Graham the substitute; and decerned the Earl and his cautioner to make payment to Mr James, he confirming before extract; reserving to Captains M'Queen and Drummond action of recourse against the representatives of Alison Fletcher, the institute and fiar of the bond, as accords; in respect the predecessor's creditors doing diligence within three years, are preferable to the creditors of the apparent heir, act 24th Parl. 1. sess. 1. C. II. whether in a real or moveable estate, under which heirs substitute are comprehended; for albeit substitutes nominatim are preferable to the heirs or executors of the institute, 18th January 1625, Wat contra Dobie*; 15th January 1630, Thomson contra Merkland †; such substitutes may be excluded by the institutes' creditors; seeing substitution or succession takes only place, after payment of the debt of the institute, who was fiar and proprietor, as in this case.
