Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Muire
v.
Elizabeth Fleming

Date: 3 December 1634

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Elizabeth Fleming, as executrix confirmed to umquhile Matthew Muire, is pursued by one Muire, to pay to him 100 franks, addebted by the said umquhile Matthew; and the defender alleging, that the whole free gear was exhausted by sentences recovered against her, partly at the instance of creditors, and partly at the instance of legators, contained in the testament, and whereof she has made payment,—this pursuer never craving nor doing diligence for his debt, and she never knowing the same: And the pursuer contending that the legators could not be paid, as long as there was any creditor's lawful debt unpaid, but that he ought to be paid of his just debt, which could not be exhausted by the legacies, and that the executrix should be put to repeat the same from the legators: And she duplying, that she ought not to be put to seek the legators again, and to be vexed with pleas, seeing she could not eschew the payment, which was made for obedience of a sentence which she could not have stayed, there never being any intimation of this pursuer's debt before these sentences, and before her payment; and, seeing other creditors and legators have been more diligent, and this pursuer has been negligent, his negligence ought not to be prejudicial to her, but to himself; so that he ought to pursue and repeat from the legators, and not she; likeas she took caution from the legators to make the sums paid to them forthcoming, in case any other debts should break out for which she might be distressed; to which caution she is content to assign this creditor; and which ought to be found enough to exoner her, and to impose a necessity upon this pursuer to convene the said legators:—The Lords found that part of the allegeance not relevant to exoner the executrix anent her payment to the legators, albeit done by virtue of sentences; but found that this pursuer should be paid as a creditor, and that the executrix ought to repeat that which she had paid to the legators from them, and that the creditor should not be astricted, nor urged to that repetition, because the executrix was his direct party; for the testament could not be exhausted but by the debts; and that legacies are not to be paid but if there be superplus of the free gear, deductis debitis. But, because this appeared to be hard to the executrix, who walked bona fide, and paid nothing but by virtue of sentences which she could not stay, this debt not being known, which might be imputed to this pursuer's own negligence;—therefore the Lords ordained this to be delayed until the parties and their procurators should be inquired if they had any practiques to allege either pro or contra to this decision. But the civil law is, in terminis, opposite to the same; for, in 1. scimus, sect. “Et si præfatam,” c. de Jure Deliberandi, it is clearly determined, that the heir (that is, to us, the executor,) who pays to the creditors who first convene him, or to the legators, is exonered of all other creditors who thereafter come to trouble him, where the inventory is exhausted by the first payment of these, whether they be creditors or legators who first come; and the heir can never be further troubled by any of them, albeit the creditor last coming was anterior to the other who is paid: and these other creditors have only action of repetition from the creditors paid, or from the legators paid, to compel them to refund to him, as in law they best may; but nowise to impeach or molest the heir, who has once paid the whole inventory to the creditors or legators who first came; neither can the buyer from the heir be convened for that which the heir sold to him, and the price whereof he converted to these creditors' or legators' use, so paid by him. How this express law agrees with our practique, it is well to be considered, and the equity and reason thereof.

Scot, Clerk.

Vid. 25th July 1634, Matheson.

Page 739.