his heirs-male, or to the heirs of his body? State the

reason.

(1.) A bond conceived to the creditor and his heirs, falls to his executors, because they are hæredes in mobilibus, and under the Act 1661.

(2.) When conceived to the creditor and his heirs-male, executors are excluded, because the destination is so qualified as to define a particular class of heirs.

(3.) When conceived to the creditor and the heirs of his body, the bond falls to his executors; because the destination is not such as to exclude the presumption that executors were meant, and so take it out of the Act 1661.1

241. How may a personal bond be made to operate in favour of the heir-at-law more extensively than his right of succession in heritage?

While heritable securities fall to the creditor's heir-at-law [but see infra under Heritable Securities as to change in the law], the arrears of interest due at the creditor's death belong to his executor. But if a personal bond is taken to the creditor, and “his heirs and assignees, secluding executors from the said principal sum and interest thereof," not only does the principal sum fall to the heir, but he is entitled also to the arrears(d) of interest, thus operating in his favour more extensively than his(e) right of succession in heritage."

242. Where a person has acquired the right to two bonds, secluding executors, one by service, and the other by assignation to him and his heirs, executors, and assignees; May the bonds be transmitted to his executors by testament?

(1.) The bond acquired by service cannot be carried by testa

1 Ersk. 2, 2, 11; Menzies Lect. 2 Muir, M. 5524.

194 (200); Duffs, M. 5429.

(d) The point as to interest did not arise in the case of Muir referred to. The question was whether a bond secluding executors was heritable or moveable, the creditor having died before the term of payment.

(e) More correctly-" his ordinary right of succession;" because an heritable bond might be made to produce the same effect.

ment; because, as such bonds are heritable of their own nature, and as service transmits rights precisely as they stood in the person of the deceased, the bond continues heritable in the person of the heir, and is, consequently, incapable of transmission by his testament. [Heritage can now be transmitted by testament.]

1

(2.) The bond acquired by assignation to the party and his heirs, executors, and assignees, may be transmitted by his testament; because by that new destination the bond has been rendered moveable, and the ordinary course of succession restored."(ƒ)

243. A person who had lent a sum of money on a personal bond, taken to himself and his heirs, secluding executors, and another sum on a bond in the ordinary terms to himself, and his heirs, executors, and assignees, died intestate before the term of payment of the former bond, but after the term of payment of the latter; How were the rights of his widow and children thereby affected?

(1.) The bond taken to the creditor and his heirs, secluding executors, being heritable sua natura, falls exclusively to his eldest son as his heir-at-law, whether he had survived or predeceased the term of payment.

1 Ersk. 2, 2, 12; Mackay, M. 3224.

2 Sandilands, M. 5498.

(f) Suppose a bond secluding executors was conveyed to a party, "and his heirs and assignees," without mentioning executors, will it continue heritable or become moveable in his person? In one case where a husband so conveyed to his wife, who survived him, it was held that their daughter must serve heir to her mother to take up the right; Lockhart, M. 5498. In another case where a father so conveyed to his eldest son, the bond was held to be heritable in his person; Kennedy, M. 5499. But the judges, though unanimous in the decision, were much divided as to the grounds of it; and there were specialties in the case, inter alia, that the assignee, being heir, would have succeeded to the bond ab intestato, in which case it would have remained heritable in his person. Erskine (2, 2, 12) leans to the opinion that unless the exclusion of executors be repeated in the assignation, the condition will fly off, aud the right become personal; but see Ross, 4th July, 1809, F.C., where a majority of the Court held that such bonds were heritable not merely in virtue of the destination contained in them, but sua natura, and on this the question depends. In practice the conveyancer should take care not to leave room for doubt as to the destination.

(2.) The bond taken to the creditor and his heirs, executors, and assignees, falls to the creditor's younger children, the widow not being entitled to any portion of it, which in a question with her is accounted heritable, as her husband, the creditor, survived the term of payment.

244. A granted a general obligation to pay the debts of B, and separately to one creditor a bond of corroboration for his principal sum and interest; All the debts of B having ultimately become a burden upon A's suc cession, how will his widow's claim upon his moveable funds be affected by the different obligations?

The general obligation is moveable, and being therefore payable out of A's personal estate, diminishes the widow's jus relictæ. As regards the debt for which A had granted a separate bond of corroboration, if he predeceased the term of payment, it is likewise a burden on the widow's right; but if he survived that term, it does not affect the jus relicta, because it contains a clause of annualrent, and was therefore heritable quoad the widow.1

245. May a bond excluding assignees be assigned?

A bond excluding assignees may be assigned for an onerous consideration, but not gratuitously."

246. What is the modern use of the penalty in bonds, and how did it come to be fixed at a fifth part more?

The modern use of the penalty is to afford ready execution for the expenses of enforcing the obligation. It is restrictable always to the amount of the expenses incurred in enforcing payment, and it relates only to the common expenses of diligence, and not to the expenses of process. The Act 1672, c. 19, anent adjudications, enacted that the creditor should have as much land adjudged as should be equivalent to his debt and interest, and a fifth part more, because he was obliged to take land for his money; and hence, it is thought, the proportion of a fifth for penalty in personal bonds derived its origin.3

1 Ross v. Graham, 14th Nov. 1816, F.C.

* Ersk. 3, 5, 2; Boswell, M. 12578.

3 Ersk. 3, 3, 86; and Ivory's Notes.

ment; because, as such bonds are heritable of their own na and as service transmits rights precisely as they stood in the son of the deceased, the bond continues heritable in the persc the heir, and is, consequently, incapable of transmission by testament. [Heritage can now be transmitted by testament.]

(2.) The bond acquired by assignation to the party and heirs, executors, and assignees, may be transmitted by his t ment; because by that new destination the bond has been rend moveable, and the ordinary course of succession restored.2(ƒ)

243. A person who had lent a sum of money on a pers bond, taken to himself and his heirs, seclu executors, and another sum on a bond in the ordi terms to himself, and his heirs, executors, and assign died intestate before the term of payment of former bond, but after the term of payment of latter; How were the rights of his widow and child thereby affected?

(1.) The bond taken to the creditor and his heirs, seclu executors, being heritable sua natura, falls exclusively to eldest son as his heir-at-law, whether he had survived or pr ceased the term of payment.

1 Ersk. 2, 2, 12; Mackay, M. 3224.

2 Sandilands, M. 5498.

an

(f) Suppose a bond secluding executors was conveyed to a party, heirs and assignees," without mentioning executors, will it continue herit or become moveable in his person? In one case where a husband so conve to his wife, who survived him, it was held that their daughter must serve to her mother to take up the right; Lockhart, M. 5498. In another where a father so conveyed to his eldest son, the bond was held to be herit in his person; Kennedy, M. 5499. But the judges, though unanimous in decision, were much divided as to the grounds of it; and there were spe ties in the case, inter alia, that the assignee, being heir, would have succe to the bond ab intestato, in which case it would have remained heritable in person. Erskine (2, 2, 12) leans to the opinion that unless the exclusio executors be repeated in the assignation, the condition will fly off, aud right become personal; but see Ross, 4th July, 1809, F.C., where a majo of the Court held that such bonds were heritable not merely in virtue of destination contained in them, but sua natura, and on this the question depe In practice the conveyancer should take care not to leave room for doubt a

the destination.