Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent Repetition and Indebiti Solutio
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Where a person obtains a sentence in his favour, if it appear another hath a pretence to that thing which is decerned to be given up, the law rationally secures the defender, by ordaining the victor to find sufficient caution to refund the thing, with its profits, in case the other competitor prevail, and be found to have best right, at least better right than the other. So appoints L. 57 in duobus unam hæreditatem petentibus; L. 57, D. de rei vindicatione in duobus unum fundum vindicantibus; L. 5, p. 19, D. de Trihutoria; where an equal distribution is made of the goods, yet with caution to refund if other creditors emerge. And that which comes nearest of all to our practice, is lex. ult, C. de Jure Deliberandi; where, if legacies be paid and creditors afterwards appear, what was paid to the legatees may be condicted and repeated from them as indebiti solutum: only it is somewhat dubious, if the executors shall be liable, referring them to their relief of the legatars, or if the creditors must betake themselves to the legatars; and if they have been long silent, I think they should. See Dury, 25th July, 1634, Crawford and Mathisone; 6th March, 1627, Scot and Cockburne; 13th March, 1627, Ker contra Lady Covinton. Vide supra, 2d December, 1675, (Kello against Kello,) numero 453, in fine.
