Scottish Court of Session Decisions

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

Adam Marshal
v.
John Byres

Date: 16 February 1628

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In a pursuit by the creditors of umquhile Adam Marshal, maltman in Edinburgh, against John Byres, burgess there, who, as executor to the defunct, their common debtor, was convened for payment to them of their debts; and the said John Byres being a creditor of the defunct's, and having confirmed himself executor to him only ad hunc effectum, to be paid of his own debt;—the Lords preferred him in his own debt to the rest of the creditors, and sustained his intromission, and defence founded thereon, concerning his preference in the defunct's goods, to all the rest of the creditors: notwithstanding that the pursuers alleged that he ought not to be preferred, but ought to come in with the rest of the defunct's creditors pro rata, and that the gear ought to be divided amongst them all proportionally; seeing John Byres had nothing to verify the defunct to be his debtor, but only an obligation made to him by the defunct on his death-bed, viz. upon the very day before his decease; likeas, immediately after his decease, the said John had confirmed himself executor to him; which diligence could not be the cause of his preference, being so preposterous, and the pursuers having omitted no diligence, but having pursued as soon as they knew the testament to be confirmed, and that the defender was executor, before which time they could do no more timely diligence; likeas their pursuits were intented within two or three months after the defunct's decease, so that they were not in negligentia. This reply was repelled, and the defender preferred, qui sibi vigilavit. Neither was it respected that the defender's bond was granted by the defunct on his death-bed: because the pursuer confessed that the debt was truly owing by him to the defender before; so that the taking of the bond on deathbed was but a confession of the debt, which was truly and lawfully owing before, and could not prejudge the defender. And, seeing he had done diligence by obtaining himself executor confirmed, to the effect he might get payment of his just debt, and that he had accordingly obtained payment, therefore he was preferred without division with the rest.

Act. ——. Alt. Burnet. Hay, Clerk.

Vid. 13th July, 1632, Pollock against Fairholm; 7th January, 1624, Shaw against Gray; and 26th January, 1628, Adie.

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