WILSON'S TRUSTEES v EWING, MAY and COMPANY (Court of Session)

This question arose in the shape of suspension of a charge, proceeding on a decree of the Lords of Council and Session in the charger's favour, for expenses in advocation by one Mann of a certain decree of the Sheriff of Lanark. Pending the process of advocation Mann died; and of this date, (13th June 1833,) his eldest son, John, was sisted in his room and place. Wilson, the suspender, was cautioner under the statute in the advocation.

The Lord Ordinary pronounced this interlocutor and note: ‘Having heard counsel for the parties, repels the reasons of suspension; finds the letters and charge orderly proceeded, and decerns; finds the chargers entitled to expenses.’

The suspenders reclaimed , and pleaded —The suspenders are not bound in terminis of the bond, more especially as cautionary bonds are strictissimi juris. The party who had been sisted in the advocation was not executor—the suit being in matters of executry—but heir-at-law to the advocator, and one of several sons, while one Thomson in Dundee had served executor qua creditor to the deceased.

Answered —The original advocator died, leaving a family, of whom the eldest, John, only was of age, and who had taken out an inventory, and been decerned executor-dative qua next of kin to the deceased.

Lord President .—The heir-at-law is liable in first instance, and has his relief against the executors.